Johnson, Kenneth Ray

• Court: Court of Criminal Appeals of Texas
• Decided: October 15, 2014
• Docket: WR-78,231-08
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-78,231-05, -06, -07 & -08

EX PARTE KENNETH RAY JOHNSON, Applicant

ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS CAUSE NOS. 23,287-B, 23,288-B, 23,289-B, 23,290-B IN THE 20th DISTRICT COURT FROM MILAM 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 a writ of habeas corpus. Ex

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

separate deliveries of a controlled substance and sentenced to two years state jail for one offense and

sixty years’ imprisonment for the other offenses. The Third Court of Appeals affirmed his

convictions. Johnson v. State, Nos. 03-12-00523/00524/00525/00526-CR (Tex. App.—Austin,

delivered August 13, 2013, pet. ref’d.).

Applicant contends, inter alia, that counsel in these cases was ineffective because he failed

to pass along a thirty-year plea offer package from the State. The Applicant further alleges that, as 2

a result of counsel’s ineffective assistance, his pleas were rendered involuntary.

Applicant has alleged facts that, if true, might entitle him to relief. 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). In the appropriate case, the trial court

may rely on its personal recollection. Id.

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 regarding whether counsel

failed to pass along a plea offer, whether the Applicant would have accepted the plea offer but for

the ineffective assistance of counsel, whether the prosecution would not have withdrawn the offer,

and whether the trial court would not have refused to accept the plea bargain agreement. Ex parte

Argent, 339 S.W.3d 781 (Tex. Crim. App. 2013). 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

claim for habeas corpus relief.

These applications 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

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

be obtained from this Court. 3

Filed: October 15, 2014 Do not publish