Lovingood, Brandon

• Court: Court of Criminal Appeals of Texas
• Decided: September 17, 2014
• Docket: WR-81,778-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-81,778-01

EX PARTE BRANDON LOVINGOOD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 5668 IN THE 424TH DISTRICT COURT FROM SAN SABA 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 continuous sexual

abuse of a child and sentenced to twenty-five years’ imprisonment. He did not appeal his conviction.

Applicant contends his plea was involuntary because counsel failed to seek the suppression

of a recording of a telephone call that was taken in violation of Applicant’s Fifth Amendment right

to counsel. Applicant also contends that his plea was involuntary because counsel advised Applicant

incorrectly as to his parole eligibility. Ex parte Moussazadeh, 361 S.W.3d 684, 691–92 (Tex. Crim.

App. 2012); TEX . GOV ’T . CODE § 508.145(a). Applicant has alleged facts that, if true, might entitle 2

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).

It appears that Applicant is represented by counsel. The trial court shall determine whether

Applicant is represented by counsel, and if not, 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 in regard to Applicant’s

claim that his plea was involuntary. The trial court shall make specific findings as to whether

counsel failed to move to suppress the recorded jail phone conversation. If the court finds counsel

erred, it shall make specific findings as to whether there is a reasonable probability that, but for

counsel’s errors, Applicant would have insisted on a trial. The trial court shall also make specific

findings as to whether counsel told Applicant that he would be eligible for parole in twelve and a

half years, despite a conviction for continuous sexual abuse of a child. If the court finds counsel gave

inaccurate advice as to parole, it should make specific findings as to whether that advice induced

Applicant to plead guilty. 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

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: September 17, 2014

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