Graham, Brady Stephen

• Court: Court of Criminal Appeals of Texas
• Decided: October 7, 2020
• Docket: WR-91,640-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-91,640-01 & 91,640-02

EX PARTE BRADY STEPHEN GRAHAM, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 60789-A-1 & 61103-A-1 IN THE 30TH DISTRICT COURT FROM WICHITA COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to robbery and forgery of a financial instrument and was sentenced

to 7 years’ and 18 months’ imprisonment, respectively. Applicant filed these applications for writs

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

TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends that he received ineffective assistance of trial counsel in both cases

because counsel failed to communicate with him until the day he accepted the plea bargains;

incorrectly informed Applicant that a hearing had been cancelled, resulting in his failure to appear

and bond revocation; “only want[ed] Applicant to accept plea bargain and/or pay $3,750”; never

gave Applicant an opportunity to meet privately with him about the proceedings or plea offers; failed 2

to file pretrial motions or challenge the sufficiency of the evidence; failed to investigate the facts and

provide defenses; and induced Applicant to plead guilty by making false promises concerning parole

attainment. Concerning the forgery conviction, Applicant adds that counsel failed to call a

handwriting expert or consult with Applicant as to Applicant’s version of events.

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). The trial court shall order trial counsel to respond to Applicant’s claims.

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 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 3

by the trial court and obtained from this Court.

Filed: October 7, 2020 Do not publish