Teel, Harvey Luther ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-85,974-01
EX PARTE HARVEY LUTHER TEEL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. WRIT08950 IN THE 196TH DISTRICT COURT
FROM HUNT 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 charged with one count of
continuous sexual abuse of a child, four counts of aggravated sexual assault of a child, and three
counts of indecency with a child by contact. He entered an open plea of guilty to continuous sexual
abuse of a child, and was sentenced to forty years’ imprisonment. The Sixth Court of Appeals
affirmed his conviction. Teel v. State, No. 06-14-00161-CR (Tex. App. — Texarkana, June 26,
2015) (not designated for publication).
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Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance
by advising him to enter an open plea of guilty to the trial court because the trial judge knew
Applicant’s parents and would be more lenient in sentencing. Applicant alleges that trial counsel
assured him that he would receive the minimum 25-year sentence if he entered an open plea to the
trial court. Applicant alleges that he and trial counsel were surprised when a different trial judge
presided at the punishment hearing, but trial counsel did not move to withdraw his plea.
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 trial counsel to respond to Applicant’s claim of ineffective assistance of counsel.
Specifically, trial counsel shall state what advice, if any, he gave to Applicant with regard to pleading
guilty or going to trial on the charges. Trial counsel shall state whether any plea offers were made
by the State, and if so, whether such offers were communicated to Applicant. Trial counsel shall
state whether he promised Applicant a 25-year sentence if he entered an open plea to the trial court.
Trial counsel shall state whether he advised Applicant that the trial judge would be more likely to
be lenient because the judge knew Applicant’s family, and whether this consideration affected trial
counsel’s advice as to how Applicant should plead. Trial counsel shall state whether he considered
moving to withdraw Applicant’s plea when it became clear that a different judge would be presiding
over the sentencing than had accepted Applicant’s plea. 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
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This Court has considered Applicant’s other claims and finds them to be without merit.
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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 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: December 7, 2016
Do not publish