Keels, James Kenneth Jr. AKA Keels, James Kenneth ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-66,781-02 & WR-66,781-03
EX PARTE JAMES KENNETH KEELS JR., Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. C34828 & C34855
IN THE COUNTY COURT AT LAW
FROM NAVARRO 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 these applications for writs of habeas corpus. Ex
parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession
of a controlled substance and tampering with physical evidence and sentenced to ninety-nine years’
imprisonment in each case. The Tenth Court of Appeals affirmed his convictions. Keels v. State,
Nos. 10-14-00140-CR & 10-14-00141-CR (Tex. App.—Waco Jul. 15, 2015) (not designated for
publication).
Applicant contends, among other things, that his trial counsel rendered ineffective assistance
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because he did not convey a plea offer. The trial court has entered findings of fact and conclusions
of law, but the findings do not address this claim.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013); 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 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 supplemental 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. Specifically, the trial court shall make findings as to whether
counsel did not convey a plea offer from the State. If the trial court finds counsel did not pass along
an offer and Applicant would have accepted the offer, the court shall make specific findings as to
whether the prosecution would have withdrawn the offer and whether the trial court would have
accepted the offer. 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.
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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
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