Johnson, Travis Daran

• Court: Court of Criminal Appeals of Texas
• Decided: February 2, 2011
• Docket: WR-75,277-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-75,277-01 EX PARTE TRAVIS DARAN JOHNSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 2008-1612-C2A IN THE 54^TH JUDICIAL DISTRICT COURT

FROM MCLENNAN COUNTY

Per curiam.

O R D E R

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to possession with intent to deliver a controlled substance. Although he had negotiated a plea agreement whereby the State would recommend a ten-year probated sentence, the trial court sentenced Applicant to fifteen years' imprisonment. He did not appeal his conviction.

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance and that his plea and waiver of appeal were not knowingly and voluntarily entered. There is nothing in the record to indicate that Applicant was advised of his right to withdraw his plea if the trial court declined to follow the plea agreement. There is also nothing to indicate what transpired in between Applicant's plea and his sentencing which caused the trial court to decline to follow the plea agreement. Applicant also alleges that counsel promised him that part of his fee would go to the trial judge's election campaign, and that in exchange Applicant would receive a probated sentence. Applicant alleges that he was given a pile of papers to sign following his plea, and that one of the documents was a waiver of appeal, which he signed without knowing the consequences of doing so. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. 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 as to whether counsel told Applicant that he would receive a probated sentence in exchange for a contribution to the trial judge's election campaign. The trial court shall supplement the record with copies of any documents or filings showing what transpired between Applicant's plea and his sentencing. The trial court shall make findings as to why the court declined to accept the plea agreement, and as to whether Applicant was advised of his right to withdraw his plea. The trial court shall make findings as to whether Applicant was properly advised of and understood the consequences of his waiver of appeal. The trial court shall make findings as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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.

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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: February 2, 2011

Do not publish