Kizzee, Mack

• Court: Court of Criminal Appeals of Texas
• Decided: June 5, 2019
• Docket: WR-89,917-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,917-01

EX PARTE MACK KIZZEE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1465995-A IN THE 337TH DISTRICT COURT FROM HARRIS 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 entered an open plea of guilty to

aggravated robbery and was sentenced to ten years’ imprisonment. He did not appeal his conviction.

Applicant contends, among other things,1 that his trial counsel rendered ineffective

assistance, causing him to enter an unknowing and involuntary plea of guilty. Applicant alleges that

trial counsel failed to investigate, failed to communicate with Applicant or inquire about any possible

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

defenses, failed to interview the State’s witnesses, failed to file pre-trial motions, and failed to

present any mitigating evidence. Applicant alleges that trial counsel promised him that he would

receive community supervision in exchange for his guilty plea, and assured him several times in the

presence of family members that he would be receiving community supervision.

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

shall order trial counsel to respond to Applicant’s claims of ineffective assistance of counsel. 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 Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

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

performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient

performance prejudiced Applicant. The trial court shall make findings of fact and conclusions of law

as to whether Applicant’s guilty plea was knowingly and voluntarily entered. 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. A supplemental transcript containing all

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or 3

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 must

be requested by the trial court and shall be obtained from this Court.

Filed: June 5, 2019 Do not publish