Davison, Anthony Ray

• Court: Court of Criminal Appeals of Texas
• Decided: August 20, 2014
• Docket: WR-81,772-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-81,772-01

EX PARTE ANTHONY RAY DAVISON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 24709 IN THE 278TH DISTRICT COURT FROM WALKER 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 this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered an open plea of guilty to

burglary of a building, and was sentenced to twenty years’ imprisonment. The Eleventh Court of

Appeals affirmed his conviction. Davison v. State, No. 11-10-00301-CR (Tex. App. – Eastland,

August 9, 2012), aff’d, Davison v. State, 405 S.W.3d 682 (Tex. Crim. App. 2013).

Applicant contends that his trial counsel rendered ineffective assistance because counsel

failed to advise him of the punishment range attached to the offense as enhanced by three prior 2

felony convictions, erroneously advised him that he would be eligible for SAFP if and only if he

entered an open plea to the trial court, failed to object to admonishments which described only the

un-enhanced punishment range for the primary offense, and failed to object when the trial court

sentenced Applicant to the maximum punishment for the offense as enhanced.

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, counsel shall state what advice she gave Applicant regarding his options for trial or

plea. Counsel shall state whether she advised Applicant of the punishment range for the offense as

enhanced, and why she did not object to the written admonishments, which contained the

punishment range for the un-enhanced offense only. Trial counsel shall state whether she considered

objecting when the trial court imposed a sentence for the enhanced offense, after having admonished

Applicant only as to the punishment range for the un-enhanced state jail felony offense. 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 transcripts of the plea and sentencing

proceedings in this case. The trial court shall then make findings of fact and conclusions of law as 3

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

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: August 20, 2014 Do not publish