Robertson, Joseph A. ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-75,397-01

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EX PARTE JOSEPH A. ROBERTSON, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 18579-A IN THE 88^TH JUDICIAL DISTRICT COURT FROM HARDIN 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 aggravated sexual assault of a child and was sentenced to twelve years' imprisonment. He did not appeal his conviction.

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel told him that the State was offering a five-year sentence in exchange for his guilty plea. Applicant alleges that he agreed to the five-year offer, but that counsel failed to complete the paperwork, and that when Applicant showed up for court, the State had changed its offer to eighteen years. Eventually, the State reduced the offer to twelve years, which Applicant apparently accepted.

The habeas record does not contain copies of the plea papers, admonishments, plea agreement, or any other information to address Applicant's claims.

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 all three of Applicant's trial attorneys with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. 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 admonishments and any written plea agreement. The trial court shall make findings of fact as to whether counsel transmitted to Applicant any and all plea offers made by the State, and if so, whether Applicant agreed to any offer that was later withdrawn. If the State withdrew a plea offer, the trial court shall make findings as to the reasons for the withdrawal of such offer, and as to what advice Applicant's counsel gave Applicant with respect to the plea offer(s). The trial court shall make findings as to whether the performance of Applicant's trial attorney 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. 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 9, 2011

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