Johnson, Gerald Wayne Ii ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-83,961-01
EX PARTE GERALD WAYNE JOHNSON II, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2-14-122-A IN THE 439TH DISTRICT COURT
FROM ROCKWALL 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 engaging in
organized criminal activity and sentenced to eighteen years’ imprisonment. He did not appeal his
conviction.
Applicant contends, among other things, that trial counsel allowed him to plead guilty even
though there was no evidence of “organized crime.” On November 4, 2015, we remanded this
application and directed the trial court to order counsel “to respond to Applicant’s claim and state
what evidence indicated that Applicant was guilty of engaging in organized criminal activity.” Ex
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parte Johnson, No. WR-83,961-01 (Tex. Crim. App. Nov. 4, 2015) (not designated for publication).
On remand, counsel filed a sworn affidavit and discussed her representation of Applicant.
But counsel failed to respond to Applicant’s claim that she allowed him to plead guilty even though
there was no evidence of “organized crime.” Accordingly, the trial court shall order counsel to file
a second response.
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
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.
After reviewing counsel’s response, the trial court shall make further findings of fact and
conclusions of law as to whether counsel’s conduct was deficient and Applicant would have insisted
on a trial but for her alleged deficient conduct. See Hill v. Lockhart, 474 U.S. 52 (1985). The trial
court shall also make any other findings and conclusions 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
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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: April 13, 2016
Do not publish