Free, Randell Wade

• Court: Court of Criminal Appeals of Texas
• Decided: April 9, 2014
• Docket: WR-72,962-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-72,962-02

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EX PARTE RANDELL WADE FREE, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 20110D00727-120-1 IN THE 120^TH DISTRICT COURT

FROM EL PASO COUNTY

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            Per curiam.

O R D E R

            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 failure to comply with sex offender registration requirements, and was sentenced to seven years’ imprisonment. He did not appeal his conviction.

            Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to investigate Applicant’s history of mental health issues before allowing him to plead guilty to this offense. Applicant alleges that he advised counsel that he had a history of mental health issues, and that he had not been on his medication at the time of the offense. Applicant alleges that he asked counsel to contact Applicant’s case worker and psychiatrist, but that counsel failed to do so. Applicant alleges that counsel failed to have him evaluated for “competency,” but it appears from his allegations that he is actually claiming that counsel should have had him evaluated for sanity at the time of the offense.

            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 claims of ineffective assistance of counsel. Specifically, counsel shall state whether he was advised by Applicant or learned from any other source that Applicant suffered from mental health issues. If so, counsel shall state whether he investigated the possibility that Applicant was insane at the time of the offense, or considered having Applicant evaluated for sanity prior to allowing him to plead guilty. 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 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: April 9, 2014

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