Grinstead, Teresa Lynn

• Court: Court of Criminal Appeals of Texas
• Decided: April 14, 2021
• Docket: WR-92,482-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,482-01

EX PARTE TERESA LYNN GRINSTEAD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F44452-AIN THE 413TH DISTRICT COURT FROM JOHNSON COUNTY

Per curiam.

ORDER

Applicant was charged with two counts of obtaining a controlled substance by fraud. She

pleaded guilty to both counts in exchange for ten years’ community supervision. Slightly more than

six years after having been placed on community supervision, Applicant pleaded true to violating

the conditions of community supervision. Her community supervision was revoked, and she was

sentenced to two years’ imprisonment for each count, to run concurrently. Applicant has since

discharged her sentences, but alleges that she continues to be restrained in her liberty because these

convictions could now be used to enhance future charges. 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. 2

Applicant contends that the trial court lacked jurisdiction to revoke her community

supervision, rendering her sentences void. She also alleges that her attorney at revocation was

ineffective for advising her to plead to true to violating the terms of her community supervision.

Count One of the indictment to which Applicant pleaded guilty alleged obtaining

Alprazolam, a Schedule III substance at the time of the offense, which would have been a third

degree felony pursuant to the applicable version of Section 481.129(d)(2) of the Texas Health and

Safety Code. Count Two alleged obtaining Hydrocodone, a Schedule II substance at the time of the

offense, which would have been a second degree felony pursuant to the applicable version of

Section 481.129(d)(1) of the Texas Health and Safety Code. However, the indictment, the plea

papers, and the judgments all referred to both counts as third degree felonies. It is not clear from the

habeas record whether this was a charging oversight, but it appears that all the parties were of the

belief that the charges were both third degree felonies.

Both of Applicant’s habeas claims are based on the fact that the maximum period of

community supervision authorized for a third degree felony offense under Chapter 481 of the Texas

Health and Safety Code was five years, under former Article 42.12, Section 3(b)(2)(B) of the Texas

Code of Criminal Procedure, the statute in effect on the date of Applicant’s offenses. Because

Applicant’s community supervision was revoked more than five years after she was placed on

community supervision, Applicant argues that the trial court lacked jurisdiction to revoke her

community supervision. For reasons that are not clear, Applicant does not allege that her original

trial counsel was ineffective for allowing her to plead guilty in exchange for ten years’ community

supervision, but does allege that her revocation counsel was ineffective for advising her to plead true

to violating the terms of that community supervision in exchange for a prison sentence after more 3

than five years had passed since Applicant was placed on community supervision.

Applicant has alleged facts that, if true, might entitle her 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 both trial counsel and revocation 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 her 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 Applicant

is restrained in her liberty under 11.07 Sec. 3(c); Ex parte Harrington, 310 S.W.3d 452, 457 (Tex.

Crim. App. 2010). The trial court shall also make findings of fact and conclusions of law as to

whether trial counsel or revocation counsel’s performance was deficient and whether Applicant

would have insisted on a trial or contested revocation but for counsel’s alleged deficient

performance. The trial court shall make findings of fact and conclusions of law as to whether the

trial court lacked jurisdiction to revoke Applicant’s community supervision during the period of that

community supervision, but after the expiration of what would have been the maximum period of

community supervision authorized by statute. The trial court shall also make findings of fact and

conclusions of law as to whether Applicant’s original probated sentence or her sentence after

revocation is void. The trial court may make any other findings and conclusions that it deems 4

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 14, 2021 Do not publish