Gray, Everett Cornelius

• Court: Court of Criminal Appeals of Texas
• Decided: September 12, 2018
• Docket: WR-87,795-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-87,795-01 & WR-87,795-03

EX PARTE EVERETT CORNELIUS GRAY, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. W15-71448-I(A) & W15-55801-I(A) IN THE CRIMINAL DISTRICT COURT NO. 2 FROM DALLAS 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 these applications for writs of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of unlawful

possession of a firearm by a felon and illegal barter, expenditure, or investment. He was sentenced

to ten and twenty years’ imprisonment, respectively. He did not appeal his convictions.

Applicant contends, among other things, that his trial counsel rendered ineffective assistance

because he misadvised Applicant about his eligibility for community supervision, and because he

wrongly allowed Applicant to waive his appellate rights. The habeas court recommends granting 2

Applicant an out-of-time appeal because his allegedly timely notice of appeal was not forwarded to

the appellate court.

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 file a supplemental response to Applicant’s claims of ineffective

assistance of counsel. 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 make specific findings addressing whether

Applicant had a right to appeal and, if so, whether he knowingly waived his right to appeal. The trial

court shall also make specific findings detailing how counsel advised Applicant of his eligibility for

community supervision in these cases. Should the trial court find that counsel erred, it shall make

further findings as to whether Applicant’s pleas were involuntary. 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 claims for habeas corpus relief.

These applications will be held in abeyance until the trial court has resolved the fact issues. 3

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 must

be requested by the trial court and shall be obtained from this Court.

Filed: September 12, 2018 Do not publish