Randall, Winfred Ray ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-47,317-05

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EX PARTE WINFRED RAY RANDALL, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 89-0260A IN THE 71^ST JUDICIAL DISTRICT COURT FROM HARRISON COUNTY

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   Per curiam. O R D E R

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to robbery and was sentenced to twenty-five years' imprisonment. He did not appeal his conviction.

Applicant contends inter alia that his plea was involuntary because was not properly advised or admonished about the conditions of the plea agreement or the applicable punishment range for the offense as enhanced by two prior felony convictions. According to Applicant, it was his understanding, based on counsel's advice, that he was pleading guilty to robbery, a second degree felony, and that in exchange for his guilty plea the State had agreed to waive the enhancement allegations. Applicant also alleges that he believed, again based on counsel's advice, that he was to receive a twenty-year sentence. The habeas record does not contain copies of a plea agreement or the trial court's admonishments as to the punishment range for the offense. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000).

In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), 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). 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. The court shall make findings as to whether Applicant was properly admonished as to the punishment range for the offense including the enhancement allegations. If there were written admonishments, the court shall supplement the habeas record with a copy of those admonishments. The trial court shall also make findings as to whether Applicant pleaded guilty pursuant to a plea agreement, and if so the court shall supplement the record with a copy of the agreement or with a transcript of any portion of the plea hearing in which the conditions of the plea were discussed. After providing Applicant's trial counsel with the opportunity to respond to Applicant's claims, the trial court shall make findings as to whether counsel properly communicated the conditions of the plea agreement, if there was such an agreement, to 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: September 13, 2006

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