Crain, Bobby Joe

• Court: Court of Criminal Appeals of Texas
• Decided: April 26, 2017
• Docket: WR-45,978-06
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-45,978-05 AND WR-45,978-06

EX PARTE BOBBY JOE CRAIN, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 77956-CR-A AND 77870-CR-A IN THE 300TH DISTRICT COURT FROM BRAZORIA 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 charged in these two

cases with one charge of unlawful possession of a firearm by a felon and one charge of theft. He

pleaded guilty to these and one other felony charge in exchange for three concurrent nine-year

sentences. He did not appeal his convictions.

Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance

1 This Court has reviewed Applicant’s other claims and finds them to be without merit. 2

because trial counsel failed to adequately investigate the facts underlying the charges, and that his

guilty pleas were rendered involuntary because of trial counsel’s deficient advice. Trial counsel has

provided an affidavit in which he states that he discussed with Applicant the nature of the charges

and the punishment ranges for each offense before Applicant pleaded guilty.

The habeas records in these two cases contain copies of the indictments, both of which charge

third degree felony offenses with no enhancements. The habeas records also contain copies of

Brooks notices provided by the State in these two cases, alleging a number of prior convictions.

Although it is not clear from the notices whether the prior convictions were state jail felonies or

felonies, TDCJ’s records indicate that at least two of the prior convictions contained in the notices

were felony convictions, and were sequential. Therefore, Applicant’s punishment in both of these

cases could have been enhanced to that of a habitual felony. The plea papers in both cases show that

Applicant was admonished as to the punishment range for second degree felonies and pleaded guilty

to second degree felonies in both cases, but do not specify whether there was a plea to any of the

enhancement allegations, or whether the State waived any or all of the enhancement allegations. The

judgements in both cases reflect second degree felony offenses, with no pleas to or findings on any

enhancement allegations.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 order trial counsel to respond to Applicant’s claim of ineffective assistance of counsel.

Specifically, trial counsel shall state what advice he gave to Applicant regarding the punishment 3

ranges for these two offenses. Trial counsel shall state whether he investigated the prior convictions

alleged in the Brooks notices, and whether he advised Applicant of the punishment ranges for these

offenses with or without enhancements. Trial counsel shall state whether the State waived any or

all of the enhancements in both cases, and whether Applicant pleaded “true” to any enhancements.

The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

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 make findings of fact and conclusions of law as to whether Applicant

pleaded “true” to any enhancements in either of these cases, and if so, shall make findings as to why

the judgments in these cases do not reflect any such pleas or findings. If Applicant did not plead true

to any enhancements, the trial court shall make findings as to why the judgments show that these

offenses were both second degree felonies. The trial court shall make findings of fact and

conclusions of law as to whether Applicant was advised of the correct punishment ranges for these

offenses, and whether his pleas of guilty were knowingly and voluntarily entered. The trial court

shall also make findings of fact and conclusions of law as to whether the performance of Applicant’s

trial counsel 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 claims for habeas corpus relief.

These applications 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 4

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 must

be requested by the trial court and shall be obtained from this Court.

Filed: April 26, 2017 Do not publish