Johnson, Gerald Wayne Ii

• Court: Court of Criminal Appeals of Texas
• Decided: April 13, 2016
• Docket: WR-83,961-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,961-01

EX PARTE GERALD WAYNE JOHNSON II, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2-14-122-A IN THE 439TH DISTRICT COURT FROM ROCKWALL 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 this application for a writ of habeas corpus. Ex parte

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

organized criminal activity and sentenced to eighteen years’ imprisonment. He did not appeal his

conviction.

Applicant contends, among other things, that trial counsel allowed him to plead guilty even

though there was no evidence of “organized crime.” On November 4, 2015, we remanded this

application and directed the trial court to order counsel “to respond to Applicant’s claim and state

what evidence indicated that Applicant was guilty of engaging in organized criminal activity.” Ex 2

parte Johnson, No. WR-83,961-01 (Tex. Crim. App. Nov. 4, 2015) (not designated for publication).

On remand, counsel filed a sworn affidavit and discussed her representation of Applicant.

But counsel failed to respond to Applicant’s claim that she allowed him to plead guilty even though

there was no evidence of “organized crime.” Accordingly, the trial court shall order counsel to file

a second response.

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

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 him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

After reviewing counsel’s response, the trial court shall make further findings of fact and

conclusions of law as to whether counsel’s conduct was deficient and Applicant would have insisted

on a trial but for her alleged deficient conduct. See Hill v. Lockhart, 474 U.S. 52 (1985). The trial

court shall also make any other findings and conclusions that it deems relevant and appropriate to

the disposition of Applicant’s claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. 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 3

be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.

Filed: April 13, 2016 Do not publish