ELLIOTT, MICHAEL LEE Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: February 3, 2016
• Docket: WR-84,342-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-84,342-01

EX PARTE MICHAEL LEE ELLIOTT, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 40147A IN THE 33RD DISTRICT COURT FROM BURNET 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 was convicted of possession of

certain chemicals with intent to manufacture a controlled substance and sentenced to fifty years’

imprisonment. The Third Court of Appeals affirmed his conviction. Elliott v. State, No. 03-12-

00793-CR (Tex. App. — Austin, July 2, 2014).

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 advised Applicant incorrectly regarding the punishment range for the offense

charged. Applicant alleges that trial counsel advised him to plead guilty in order to receive a lower

sentence, but that counsel advised him that the maximum sentence he could receive if convicted by

a jury would be twenty years’ imprisonment. In fact, the offense as charged was a second degree

felony enhanced to first degree felony punishment range by a single prior felony conviction.

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, if any he gave to Applicant regarding the

punishment range for the offense charged. If there were plea offers made prior to trial, trial counsel

shall state what the terms of those plea offers were, and whether he advised Applicant of the pros

and cons of pleading guilty versus going to trial on the charges. 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 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 3

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: February 3, 2016 Do not publish