McAlester, Willie Errol ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-85,662-01; WR-85,662-02; WR-85,662-03
EX PARTE WILLIE ERROL MCALESTER, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. 25768 HC-1; 25916 HC-1; 25916 HC-2
IN THE 6TH DISTRICT COURT FROM LAMAR 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 delivery
of a controlled substance in a drug free zone and sentenced to four years’ imprisonment in three
counts. He did not appeal his convictions.
Applicant’s habeas counsel, who was also trial counsel, filed these applications raising a
single claim of improper admonishments. That claim is not cognizable on habeas. However, in the
sworn allegations of that claim, habeas counsel states that he gave Applicant erroneous advice as to
parole eligibility, which may have rendered Applicant’s plea involuntary. Because the application
contains a sworn statement from counsel admitting to giving bad advice, and this application triggers
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the bar on subsequent applications under Texas Code of Criminal Procedure art. 11.07 § 4, this Court
has decided to have the trial court further investigate the voluntariness of Applicant’s plea and the
effectiveness of Applicant’s counsel.
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 may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).
Applicant is represented by counsel. However, counsel may have a conflict of interest in this
matter. 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 different 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 whether
counsel gave Applicant bad advice which Applicant relied on when accepting his plea. The trial
court shall make findings on whether Applicant would have pleaded guilty but for counsel’s advice
regarding his parole eligibility. 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 shall
be obtained from this Court.
Filed: September 28, 2016
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