McMillan, Tanya Marie Warrell

• Court: Court of Criminal Appeals of Texas
• Decided: October 24, 2018
• Docket: WR-88,970-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-88,970-01

EX PARTE TANYA MARIE WARRELL MCMILLAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR14-150 IN THE 4TH DISTRICT COURT FROM RUSK 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 theft and

sentenced to forty years’ imprisonment. The Sixth Court of Appeals affirmed her conviction.

McMillan v. State, No. 06-16-00209-CR (Tex. App.—Texarkana Aug. 22, 2017) (not designated for

publication).

Applicant contends, among other things, that her sentence is illegal and that her trial counsel

rendered ineffective assistance. Her claims are based on her allegation that the prior conviction used

as an enhancement in this case was an un-revoked, probated sentence from federal court. 2

Applicant has alleged facts that, if true, might entitle her to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Murchison, 560 S.W.2d 654 (Tex. Crim. App. 1978); Ex parte Pue,

552 S.W.3d 226 (Tex. Crim. App. 2018). 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 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 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 specific findings addressing the prior

enhancement conviction to which Applicant pleaded “true” in this case. The trial court shall make

specific findings determining whether the prior conviction was probated, and if so, whether

probation was ever revoked. 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 claims

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: October 24, 2018

Do not publish