McAlester, Willie Errol

• Court: Court of Criminal Appeals of Texas
• Decided: September 28, 2016
• Docket: WR-85,662-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-85,662-01; WR-85,662-02; WR-85,662-03

EX PARTE WILLIE ERROL MCALESTER, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 25768 HC-1; 25916 HC-1; 25916 HC-2 IN THE 6TH DISTRICT COURT FROM LAMAR 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 writs of habeas corpus. Ex

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

of a controlled substance in a drug free zone and sentenced to four years’ imprisonment in three

counts. He did not appeal his convictions.

Applicant’s habeas counsel, who was also trial counsel, filed these applications raising a

single claim of improper admonishments. That claim is not cognizable on habeas. However, in the

sworn allegations of that claim, habeas counsel states that he gave Applicant erroneous advice as to

parole eligibility, which may have rendered Applicant’s plea involuntary. Because the application

contains a sworn statement from counsel admitting to giving bad advice, and this application triggers 2

the bar on subsequent applications under Texas Code of Criminal Procedure art. 11.07 § 4, this Court

has decided to have the trial court further investigate the voluntariness of Applicant’s plea and the

effectiveness of Applicant’s counsel.

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).

Applicant is represented by counsel. However, counsel may have a conflict of interest in this

matter. 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 different 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 whether

counsel gave Applicant bad advice which Applicant relied on when accepting his plea. The trial

court shall make findings on whether Applicant would have pleaded guilty but for counsel’s advice

regarding his parole eligibility. 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

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 28, 2016 Do not publish