Pete, Andrew ( 2019 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-89,935-01, WR-89,935-02 AND WR-89,935-03
EX PARTE ANDREW PETE, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. W12-33559-V(A), W12-33560-V(A) AND W12-33561-V(A)
IN THE 292ND DISTRICT COURT
FROM DALLAS 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 these applications for writs of habeas corpus. Ex
parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of three
charges of aggravated sexual assault of a child. After a mistrial was declared during the punishment
stage, but before a new jury was empaneled to assess punishment, Applicant entered into a plea
agreement whereby he would receive three concurrent eight-year sentences, and would waive his
right to appeal. The trial court sentenced Applicant in accordance with the plea agreement.
2
Applicant contends, among other things,1 that both his original trial counsel and his counsel
during the post-mistrial punishment proceedings rendered ineffective assistance for various reasons.
Applicant alleges that his trial counsel was ineffective for failing to investigate or prepare
for trial, failing to investigate an extraneous offense although he was aware that the State intended
to introduce evidence of that extraneous offense during the guilt/innocence stage, failing to impeach
the extraneous offense witness with evidence of her bias and prior inconsistent statements, failing
to file a motion in limine or object to evidence about the extraneous offense witness’s belief as to
why Applicant was not prosecuted for the extraneous offense, and failing to impeach the
complaining witness with prior inconsistent statements.
Applicant alleges that his post-mistrial counsel was ineffective for failing to adequately
prepare for the punishment trial, causing Applicant to enter into an unknowing and involuntary plea
at the punishment stage, and failing to advise Applicant regarding his right to appeal or explain to
him that he was waiving the right to appeal entirely by entering into the plea agreement.
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 both Applicant’s original trial counsel and his counsel at the post-mistrial punishment
proceedings to respond to Applicant’s claims of ineffective assistance of counsel. 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.
1
This Court has reviewed Applicant’s other claims and finds them to be without merit.
3
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 findings of fact and conclusions of
law as to whether the performance of Applicant’s post-mistrial punishment counsel was deficient,
and, if so, whether counsel’s deficient performance prejudiced Applicant. The trial court shall make
findings of fact and conclusions of law as to whether Applicant’s punishment plea was knowingly
and voluntarily entered. 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
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: July 3, 2019
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