IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,526-01
EX PARTE SHANE MICHAEL CRITES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR-12-24077 IN THE 336TH DISTRICT COURT
FROM FANNIN 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). Applicant pleaded guilty to theft in exchange
for a two-year state jail sentence, probated for five years. His probation was later revoked pursuant
to a plea of “true,” and Applicant was sentenced to two years’ state jail imprisonment after
revocation. He waived his right to appeal.
Applicant contends that his trial counsel rendered ineffective assistance because counsel did
not object when the trial court elected not to follow the sentencing recommendation after revocation
of probation. The habeas record contains a “plea agreement” whereby Applicant agreed to plead
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“true” to violating the terms of his community supervision and waive his right to appeal in exchange
for a sentence of twelve months’ state jail time. The agreement was apparently approved by the trial
court. Nevertheless, the judgment revoking probation reflects a sentence after revocation of two
years’ state jail, rather than twelve months as indicated in the agreement.
Applicant has alleged facts that, if true, might entitle him 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. This Court has
held that there is no such thing as a binding plea agreement in the context of probation revocation.
Gutierrez v. State, 108 S.W.3d 304 (Tex. Crim. App. 2003). However, if Applicant’s counsel at
revocation advised him to plead “true” to the allegations in the motion to revoke, and to waive his
right to appeal without also advising Applicant that any plea agreement was not binding on the trial
court, Applicant may have relied on counsel’s advice to his detriment. The trial court shall order
trial counsel to respond to Applicant’s claim of ineffective assistance of counsel. 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.
The trial court shall 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 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
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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: January 14, 2015
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