IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-85,071-01 & WR-85,071-02
EX PARTE DAVID KENNARD VASBINDER III, Applicant
ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS
CAUSE NOS. CR-14-069 & CR-15-021
IN THE 198TH DISTRICT COURT
FROM BANDERA COUNTY
Per curiam. ALCALA , J., filed a concurring opinion in which JOHNSON , J., joined.
YEARY , J., filed a concurring opinion in which KEASLER and HERVEY , JJ., joined.
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 these applications for a writ of habeas corpus. Ex
parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated
assault and failure to appear and sentenced to imprisonment for twenty and five years, respectively.
He did not appeal his convictions.
Applicant contends, among other things, that he was not competent at the guilty-plea and
adjudication proceedings; adjudication-of-guilt counsel failed to file notices of appeal; and in the
aggravated assault case, counsel failed to explain that Applicant could be sentenced to twenty years.
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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. The trial court
shall order guilty-plea and adjudication-of-guilt counsel to respond to Applicant’s claims that he was
incompetent and that he was not advised that he could be sentenced to twenty years in his aggravated
assault case. The trial court shall also order adjudication-of-guilt counsel to respond to Applicant’s
claim that counsel failed to file notices of appeal. 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 him 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 (1) Applicant
was competent at the guilty-plea and adjudication proceedings; (2) Applicant was denied his right
to appeals because adjudication-of-guilt counsel failed to file notices of appeal; (3) counsel were
deficient for not advising Applicant that he could be sentenced to twenty years in his aggravated
assault case; and if so, (4) Applicant was prejudiced by this deficient advice. 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 claims for habeas corpus relief.
These applications 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
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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: June 29, 2016
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