Mahan, Dwight Lee

• Court: Court of Criminal Appeals of Texas
• Decided: April 1, 2020
• Docket: WR-61,568-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-61,568-03

EX PARTE DWIGHT LEE MAHAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 16449-B IN THE 29TH DISTRICT COURT FROM PALO PINTO COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to burglary of a habitation and was sentenced to fifty-five years’

imprisonment. The Eleventh Court of Appeals affirmed his conviction. Mahan v. State, No. 11-18-

00289-CR (Tex. App.—Eastland June 13, 2019) (not designated for publication). Applicant filed

this application for a writ of habeas corpus in the county of conviction, and the district clerk

forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends, among other things, that trial counsel rendered his plea involuntary.

Counsel responded in a sworn affidavit, but the trial court concluded that Applicant’s claim was

barred by Article 11.07, § 4 of the Code of Criminal Procedure. We disagree. The previous

application in this case was dismissed; there was not a “final disposition” of that application. See 2

Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Crim. App. 1997).

Applicant has alleged facts that, if true, might entitle him to relief. Hill v. Lockhart, 474 U.S.

52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013). The trial court is the

appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court

may order trial counsel to further respond Applicant’s claim. In developing the record, the trial court

may use any means set out in Article 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 wants to be represented by

counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM .

PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this

Court of counsel’s name.

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

counsel’s performance was deficient and Applicant would have insisted on a trial but for counsel’s

alleged deficient performance. The trial court may make any other findings and conclusions that it

deems appropriate in response to Applicant’s claim.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: April 1, 2020 Do not publish