IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-68,962-01
EX PARTE TRACY RAY GIBSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F14962-2007-A IN THE 145TH DISTRICT COURT
FROM NACOGDOCHES COUNTY
Per curiam.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). This Court originally denied the application
without written order on January 9, 2008. However, it has since come to light that the denial may
have been erroneous. Therefore, this Court will now reconsider the denial on the Court’s own
motion, and will remand the matter to the trial court for affidavits and findings to further address
Applicant’s claims.
Applicant pleaded guilty pursuant to an indictment which named the offense as aggravated
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robbery but alleged the elements of robbery, enhanced by a prior felony conviction. Pursuant to a
plea agreement, Applicant was sentenced to twenty years’ imprisonment. He did not appeal his
conviction.1
Applicant contends, among other things, that his trial counsel rendered ineffective assistance
because counsel did not investigate and discover that the facts did not support a charge of aggravated
robbery. Applicant also alleges that trial counsel did not explain to him the elements of the offense
of aggravated robbery. As noted above, the indictment alleged the elements of robbery, a second
degree felony with a single prior felony enhancing the punishment range to that of a first degree
felony, or five to ninety-nine years’ or life imprisonment. However, the offense listed in the heading
of the indictment was aggravated robbery. The plea papers show that Applicant was admonished
that he was pleading guilty to aggravated robbery, and that the punishment range was that of an
enhanced first degree felony, or fifteen to ninety-nine years’ or life imprisonment. Although the
twenty-year sentence in exchange for which Applicant pleaded guilty falls within both punishment
ranges, the record suggests that Applicant was not informed that the minimum punishment was five,
rather than fifteen years’ imprisonment. The judgment showed the offense of which Applicant was
convicted as aggravated robbery, a first degree felony.
After Applicant filed this application in the district court but before the application was
forwarded to this Court the trial court entered a judgment nunc pro tunc, correcting the judgment to
reflect a conviction for the second degree offense of robbery. The trial court recommended denying
relief on the habeas application, finding that Applicant in fact pleaded guilty to robbery, enhanced,
1
Applicant did try belatedly to file a direct appeal, but the appeal was dismissed for want
of jurisdiction. Gibson v. State, No. 12-12-00403-CR (Tex. App. – Tyler, December 5,
2012)(not designated for publication).
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rather than aggravated robbery, enhanced. Apparently, Applicant was not provided with a copy of
the judgment nunc pro tunc until several years after this Court had denied his habeas application.
In response to subsequent habeas applications filed by Applicant, the trial court also noted
that the judgment nunc pro tunc was to Applicant’s benefit. While it is true that Applicant is not
presently suffering the adverse parole consequences of an aggravated robbery conviction because
of the judgment nunc pro tunc, the entry of the judgment nunc pro tunc did not address the
possibility that Applicant’s plea was not knowingly and voluntarily entered because he was
incorrectly admonished as to the applicable punishment range for the offense charged.
Applicant has alleged facts that, if true, might entitle to relief. Strickland v. Washington, 466
U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these
circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294
(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court
shall order trial counsel to respond to Applicant’s claims of ineffective assistance of counsel.
Specifically, trial counsel shall state whether he performed an investigation of the facts underlying
this charge, and if so, whether the facts supported a charge of aggravated robbery, or only a charge
of robbery. Trial counsel shall state whether he discussed with Applicant the elements of an
aggravated robbery charge, and the facts the State would have to prove in order to convict Applicant
of aggravated robbery. The trial court may use any means set out in TEX . CODE CRIM . PROC. art.
11.07, § 3(d).
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.
If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an
attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.
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The trial court shall first supplement the habeas record with a transcript of the plea
proceedings in this case, if such a transcript exists or can be produced. The trial court shall then
make findings of fact and conclusions of law as to whether the performance of Applicant’s trial
counsel was deficient and, if so, whether counsel’s deficient performance prejudiced Applicant. The
trial court shall make findings as to whether Applicant would have pleaded guilty in exchange for
a twenty-year sentence had he been properly advised that the applicable punishment range was five
to ninety-nine years’ or life imprisonment, rather than fifteen to ninety-nine years’ or life
imprisonment. The trial court shall also make any other findings of fact and conclusions of law that
it deems relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or
deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall
be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall
be obtained from this Court.
Filed: July 1, 2015
Do not publish
Gibson, Tracy Ray
Combined Opinion