Draper, Herbert James

• Court: Court of Criminal Appeals of Texas
• Decided: July 29, 2015
• Docket: WR-83,478-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,478-01

EX PARTE HERBERT JAMES DRAPER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1337145-A IN THE 338TH DISTRICT COURT FROM HARRIS 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 pleaded guilty to aggravated

robbery and was sentenced to twelve years’ imprisonment. He did not appeal his conviction.

Applicant contends, among other things, that trial counsel’s conduct rendered his plea

involuntary. Counsel responded in sworn affidavits, and the trial court made findings of fact and

conclusions of law, recommending that we deny relief. 2

We believe that the record is not adequate to resolve Applicant’s claim. Applicant has alleged

facts that, if true, might entitle him to relief. Hill v. Lockhart, 474 U.S. 52 (1985); 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 counsel to respond

and describe his investigation of the charges and the evidence against Applicant. 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 him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

After reviewing counsel’s response, the trial court shall make further findings of fact and

conclusions of law as to whether counsel’s conduct was deficient and Applicant would have insisted

on a trial but for counsel’s deficient conduct. The trial court shall also order the District Clerk to

forward the reporter’s record of the plea hearing, if it is available. 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. 3

Filed: July 29, 2015 Do not publish