IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-84,483-02
EX PARTE ANDRE OSAGIE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 16642B IN THE 21ST DISTRICT COURT
FROM WASHINGTON COUNTY
Per curiam. ALCALA , J., filed a concurring opinion.
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 was convicted of aggravated
assault with a deadly weapon and sentenced to twelve years’ imprisonment. The Fourteenth Court
of Appeals affirmed his conviction. Osagie v. State, No. 14-13-01138-CR (Tex. App.—Houston
[14th Dist] Jan. 29, 20015) (not designated for publication).
Applicant contends, among other things, that his trial counsel rendered ineffective assistance
because he did not advise Applicant that he was ineligible for probation and deferred adjudication
community supervision for the charged offense.
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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 Moody, 991 S.W.2d 856, 857–58 (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 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). In the
appropriate case, the trial court may rely on its personal recollection. Id.
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 make specific findings as to how counsel
advised Applicant concerning his eligibility for community supervision. Should the trial court
determine that counsel misadvised Applicant, the court shall make specific findings as to whether
there is a reasonable probability that, but for counsel’s errors, Applicant would not have pleaded
guilty and would have insisted on going to trial. 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.
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
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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 must
be requested by the trial court and shall be obtained from this Court.
Filed: October 5, 2016
Do not publish
Osagie, Andre
Combined Opinion