Dempsey, Charles Alexander ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-71,681-01

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EX PARTE CHARLES ALEXANDER DEMPSEY, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 27061-A IN THE 3^RD JUDICIAL DISTRICT COURT FROM ANDERSON 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 entered an open plea of guilty to aggravated sexual assault of a child, and was sentenced to life imprisonment.

Applicant contends that his counsel rendered ineffective assistance because counsel failed to consult with Applicant, failed to properly advise Applicant of the consequences of his plea, led Applicant to believe that he would get probation, and failed to timely file a notice of appeal despite Applicant's requests, thereby denying Applicant his right to appeal. Applicant also alleges that his plea was not knowingly and voluntarily entered because of counsel's failure to advise him or include him in the plea negotiation process.

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. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall provide counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel on appeal. 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 first supplement the record with copies of the plea papers, including the admonishments, waivers, and stipulations. The trial court shall then make findings of fact as to whether Applicant was properly advised as to the nature of the charges, the applicable punishment range, the rights he was waiving, and the consequences of his plea. The trial court shall also make findings as to whether trial counsel consulted with Applicant during the plea process, and as to whether counsel advised Applicant that he would receive probation if he entered an open plea to the court. The trial court shall make findings as to whether Applicant was denied his right to a meaningful appeal because Applicant's counsel failed to timely file a notice of appeal. 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: March 25, 2009

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