Gay, Donald Lynn

• Court: Court of Criminal Appeals of Texas
• Decided: April 1, 2020
• Docket: WR-90,852-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,852-01

EX PARTE DONALD LYNN GAY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1599008-A IN THE 232ND DISTRICT COURT FROM HARRIS COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to failure to comply with sex offender registration requirements and

was sentenced to fifteen years’ imprisonment. 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.

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

did not discover that Applicant had no duty to register at the time of the charges. Applicant has

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

CODE CRIM . PROC. art. 62.101(b). 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). The trial court 2

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.

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 shall make specific findings addressing whether Applicant

was under a lifetime duty to register as a sex offender or whether his duty lasted for ten years from

the date of his release. The trial court may make any other findings and conclusions that it deems

appropriate in response to Applicant’s claims.

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: April 1, 2020 Do not publish