IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-86,135-01
EX PARTE KELLY JAY NEAL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2013F00468 IN THE 5TH DISTRICT COURT
FROM CASS 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 was convicted of continuous sexual
abuse of a child and sentenced to twenty-five years’ imprisonment. He did not appeal his conviction.
Applicant claims that his guilty plea was involuntary due to trial counsel’s ineffective
assistance. See Strickland v. Washington, 466 U.S. 668, 687 (1984). He contends that he was offered
alternative plea deals for fifteen or seventeen years on lesser included indecency with a child by
contact; there was a deadline for accepting the offer. Applicant states, “Verbally, counsel informed
[Applicant] that he could get him a 15-year sentence on [the deadline date]. Counsel was ineffective
for not bringing [Applicant] before the court in time to accept either offer. Had counsel brought
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[Applicant] to court before the deadline expired, [Applicant] would have accepted the State’s 17-year
or on the alternative the 15-year offer.”
Applicant has alleged facts that, if true, might entitle him to relief. See Lafler v. Cooper, 132
S.Ct. 1376 (2012); Missouri v. Frye, 132 S.Ct. 1399 (2012). 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 obtain a response from
trial counsel regarding Applicant’s claim for habeas relief and resolve the controverted factual issues.
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 in regard to Applicant’s
claim that his plea was involuntary due to trial counsel’s ineffective assistance. 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 must
be requested by the trial court and shall be obtained from this Court.
Filed: February 1, 2017
Do not publish
Neal, Kelly Jay
Combined Opinion