Neal, Kelly Jay

• Court: Court of Criminal Appeals of Texas
• Decided: February 1, 2017
• Docket: WR-86,135-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-86,135-01

EX PARTE KELLY JAY NEAL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2013F00468 IN THE 5TH DISTRICT COURT FROM CASS 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 claims that his guilty plea was involuntary due to trial counsel’s ineffective

assistance. See Strickland v. Washington, 466 U.S. 668, 687 (1984). He contends that he was offered

alternative plea deals for fifteen or seventeen years on lesser included indecency with a child by

contact; there was a deadline for accepting the offer. Applicant states, “Verbally, counsel informed

[Applicant] that he could get him a 15-year sentence on [the deadline date]. Counsel was ineffective

for not bringing [Applicant] before the court in time to accept either offer. Had counsel brought 2

[Applicant] to court before the deadline expired, [Applicant] would have accepted the State’s 17-year

or on the alternative the 15-year offer.”

Applicant has alleged facts that, if true, might entitle him to relief. See Lafler v. Cooper, 132

S.Ct. 1376 (2012); Missouri v. Frye, 132 S.Ct. 1399 (2012). 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 obtain a response from

trial counsel regarding Applicant’s claim for habeas relief and resolve the controverted factual issues.

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 in regard to Applicant’s

claim that his plea was involuntary due to trial counsel’s ineffective assistance. 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 must

be requested by the trial court and shall be obtained from this Court.

Filed: February 1, 2017 Do not publish