Dufner, Bradley Dale

• Court: Court of Criminal Appeals of Texas
• Decided: June 10, 2015
• Docket: WR-83,297-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,297-01

EX PARTE BRADLEY DALE DUFNER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 18401-A (1) IN THE 329TH DISTRICT COURT FROM WHARTON 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

assault of a public servant in exchange for deferred adjudication community supervision. He was

later adjudicated guilty and sentenced to ten years’ imprisonment. A new trial was granted, and he

was again adjudicated guilty and this time sentenced to eight years’ imprisonment. He did not

appeal his conviction.

Applicant contends that his trial counsel rendered ineffective assistance because counsel would not allow Applicant’s wife to testify on his behalf, but advised Applicant to plead guilty in

exchange for deferred adjudication community supervision. Applicant alleges that his wife would

have provided exculpatory testimony. He also alleges that video from the complainant’s polie

vehicle would have showed that he did not strike the complainant. Applicant alleges that counsel

would not allow Applicant’s wife or family members to be present or testify at the adjudication

hearing, and promised Applicant that he would receive nine months in a rehabilitation facility if he

pleaded “true.” Applicant alleges that after he was adjudicated guilty and sentenced to ten years’

imprisonment, he was coerced into waiving his right to appeal in exchange for a reduction of the

sentence to eight years’ imprisonment.

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. 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 as to whether Applicant waived his right to appeal

in exchange for a reduction of his sentence after adjudication, and if so, shall supplement the record

with copies of any written waivers or plea agreements. 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 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: June 10, 2015 Do not publish