Hearn, Herman Brian

• Court: Court of Criminal Appeals of Texas
• Decided: July 28, 2021
• Docket: WR-92,802-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,802-01

EX PARTE HERMAN BRIAN HEARN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 6636-A IN THE 39TH DISTRICT COURT FROM HASKELL COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to escape in exchange for fifteen years’ imprisonment, to run

consecutively with a fifteen-year sentence in a theft case to which he pleaded guilty on the same date.

Applicant did not appeal his conviction. 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,1 that his trial counsel was ineffective for failing to

investigate Applicant’s history of mental illness and request a competency evaluation or hearing,

1 This Court has considered Applicant’s other claims and finds them to be without merit. 2

failing to advise Applicant of the elements that would have to be proven at trial, advising Applicant

to accept the plea agreement or face a much higher sentence if convicted at trial, and advising

Applicant that his sentence in this case must, “by state law,” run consecutively with any other

sentence imposed on him. 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. Specifically, trial counsel shall state whether he was aware of

Applicant’s history of mental illness, and if so, whether he saw any indication that Applicant might

not be competent to enter a plea. Trial counsel shall state whether he advised Applicant of the

elements that would have to be proven at trial, and whether the evidence showed that Applicant

committed the offense of escape, as opposed to attempted escape. Trial counsel shall state what

advice, if any, he gave Applicant with regard to pleading guilty or going to trial on the charges. Trial

counsel shall state what the basis for his assertion, in a letter to Applicant dated March 7, 2013, that

any sentence for the escape charge would be required “by state law” to run consecutively with any

other sentence imposed was. 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 3

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

by the trial court and obtained from this Court.

Filed: July 28, 2021 Do not publish