Morgan, Cory Dale

• Court: Court of Criminal Appeals of Texas
• Decided: September 24, 2014
• Docket: WR-81,867-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS No. WR-81,867-01

EX PARTE CORY DALE MORGAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 12-1212-K368A IN THE 368TH DISTRICT COURT FROM WILLIAMSON 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 possession with

intent to distribute four grams or more but less than 200 grams of methamphetamine and was

sentenced to twenty years’ incarceration. There was no direct appeal.

Applicant contends, inter alia, that he agreed to plead guilty to the drug offense with an

affirmative deadly weapon finding instead of pleading guilty to it with a finding it was committed

in a drug-free zone. See TEX . CODE CRIM . PROC. art. 42.12 § 3g(a)(2); CONTROLLED SUBSTANCES

ACT § 481.134(c). He states that his decision was based on trial counsel’s advice that he would be -2-

eligible for parole consideration earlier with a deadly-weapon finding than with a drug-free-zone

finding. See TEX . GOV ’T CODE §§ 508.145(d)(1), (e). He argues that the advice was incorrect and

that his plea was therefore involuntary. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex

Parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012). The habeas record forwarded to this

Court contains no response from trial counsel regarding plea offers or his advice to Applicant

regarding parole eligibility.

Applicant has alleged facts that, if true, might entitle him to relief. 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 Applicant’s trial counsel to explain his representation of and advice

to Applicant and respond to the claim that Applicant’s guilty plea was not voluntary due to counsel’s

parole advice. To obtain the response, 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 regarding whether trial

counsel’s advice was incorrect as Applicant alleges and, if so, whether the advice rendered

Applicant’s guilty plea involuntary. The trial court may also make any other findings of fact and

conclusions of law it deems relevant and appropriate.

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 -3-

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 24, 2014 Do not publish