Frank, Felton

• Court: Court of Criminal Appeals of Texas
• Decided: February 8, 2023
• Docket: WR-82,235-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,235-03

EX PARTE FELTON FRANK, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1326377-A IN THE 228TH DISTRICT COURT FROM HARRIS COUNTY

Per curiam. NEWELL, J., concurred. KELLER, P.J., and YEARY , J., dissented.

ORDER

Applicant pleaded guilty to sexual assault of a child and was sentenced to four years’

imprisonment. Applicant did not appeal his conviction. Applicant filed this application for a writ

of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See

TEX . CODE CRIM . PROC. art. 11.07.

This application was file-stamped in Harris County on October 8, 2013. An order

designating issues was signed by the trial judge on December 2, 2013. An affidavit was requested

from trial counsel on December 13, 2014; however, no affidavit from trial counsel appears in the

habeas record. This application was not received by this Court until August 29, 2022. There is no

indication in the record of any action by the trial court after the order designating issues was signed, 2

and the affidavit was requested from trial counsel. Nor is there any indication as to why this

application was pending in Harris County for so long without any action by the clerk or the trial

court.

Applicant contends, among other things, that his plea was involuntary because trial counsel

failed to properly admonish him as to the effect of the plea bargain. Applicant has alleged facts that,

if true, might entitle him to relief. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Argent, 393

S.W.3d 781 (Tex. Crim. App. 2013). Accordingly, the record should be developed. The trial court

is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

As a preliminary matter, the trial court shall make findings of fact as to why no action was

taken by the trial court or the clerk between the entry of the order designating issues, the request of

the affidavit from trial counsel, and the forwarding of the application to this Court. The trial court

shall obtain a response from Applicant as to whether Applicant still wants to pursue this application,

and shall include that response in the supplemental record. If the trial court is unable to obtain such

a response from Applicant, the trial court shall detail the efforts that were made to obtain a response

from Applicant. The trial court shall then return the application to this Court.

If Applicant indicates that he does want to pursue this application, the trial court shall order

trial counsel to respond to Applicant’s claim. In developing the record, the trial court may use any

means set out in Article 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 wants to be represented by counsel, the

trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art.

26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of

counsel’s name. 3

The trial court shall supplement the habeas record with the transcript from the plea hearing.

The trial court shall make findings of fact and conclusions of law as to whether trial counsel’s

performance was deficient and Applicant would have insisted on a trial but for counsel’s alleged

deficient performance. The trial court may make any other findings and conclusions that it deems

appropriate in response to Applicant’s claim.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: February 08, 2023 Do not publish