Brittain, Chisholm Lee

• Court: Court of Criminal Appeals of Texas
• Decided: September 14, 2011
• Docket: WR-76,284-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-76,284-01, WR-76,284-02 & WR-76,284-03 EX PARTE CHISHOLM LEE BRITTAIN, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NO. 5095A-2011, 5096A-2011 & 5097A-2011

IN THE 8^TH JUDICIAL DISTRICT COURT

FROM RAINS 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to one charge of burglary of a habitation, one charge of aggravated robbery, and one charge of aggravated kidnapping and was sentenced to twenty years' imprisonment for the burglary of a habitation, thirty-five years' imprisonment for the aggravated robbery, and thirty years' imprisonment for the aggravated kidnapping, with all sentences running concurrently. He did not appeal his convictions.

Applicant contends that his pleas were involuntary and that his judgments in the aggravated robbery and aggravated kidnapping cases should not have had affirmative deadly weapon findings. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (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 supplement the record with copies of the plea documents in these three cases, including admonishments, stipulations, waivers, and any written plea agreements. The trial court shall also supplement the record with a transcript of the plea proceedings. The trial court shall then make findings of fact and conclusions of law in regard to Applicant's claim that his pleas were involuntary. 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 14, 2011

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