Argent, Ex Parte Andrew Kelly

• Court: Court of Criminal Appeals of Texas
• Decided: October 10, 2012
• Docket: AP-76,891
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. AP-76,891 & AP-76,892 EX PARTE ANDREW KELLY ARGENT, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. CR25392 A & CR 25393 A IN THE 75^TH DISTRICT COURT FROM LIBERTY COUNTY

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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of aggravated sexual assault and indecency with a child by contact. He was sentenced to imprisonment for twenty years in each case.

Counsel erroneously informed Applicant that he would be eligible for judge-ordered community supervision and shock probation. Applicant contends that this incorrect advice caused his rejection of a plea offer to be unknowing. After a live hearing, the trial court found that counsel erred, but that Applicant could not show harm as the record showed he would not have been placed on community supervision irrespective of his eligibility. However, in this case, the prejudice determination depends upon Applicant's choice not to accept the plea offer. Shortly after these applications were filed in the trial court, the United States Supreme Court handed down decisions addressing, inter alia, what an Applicant must prove to demonstrate prejudice on collateral review when he is deprived of the opportunity to consider and accept a plea offer due to counsel's ineffectiveness. Lafler v. Cooper, 132 S. Ct. 1376 (2012); Missouri v. Frye, 132 S. Ct. 1399 (2012). In Lafler and Frye, the Supreme Court set out a test for prejudice that differs from the test set forth by this Court in Ex parte Lemke, 13 S.W.3d 791, 797 (Tex. Crim. App. 2000). We order that these applications be filed and set to determine whether the Lemke test survives the Lafler and Frye decisions. The parties shall brief the issue.

It appears that Applicant is represented by counsel appointed for the habeas hearing. If he is not, the trial court shall determine whether he is indigent. If he is indigent and desires to be represented by counsel, the trial court shall appoint an attorney to represent him. Tex. Code Crim. Proc. art 26.04. The trial court shall send to this Court, within 30 days of the date of this order, a supplemental transcript containing: a confirmation that Applicant is represented by counsel; the order appointing counsel; or a statement that Applicant is not indigent. All briefs shall be filed with this Court within 60 days of the date of this order.

Filed: October 10, 2012

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