Payne, Brandon Javon

• Court: Court of Criminal Appeals of Texas
• Decided: March 27, 2019
• Docket: WR-76,539-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-76,539-02, WR-76,539-03

EX PARTE BRANDON JAVON PAYNE, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 1236358-A & 1236359-A IN THE 230TH DISTRICT COURT FROM HARRIS 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 aggravated

robbery and sentenced to thirty years’ imprisonment in both cause numbers in one proceeding. He

did not appeal his convictions.

Applicant contends that his plea was involuntary because he was inproperly informed that

he retained the right to appeal and he would not have pleaded guilty had he known that he could not

appeal the sentences. Applicant has alleged facts that, if true, might entitle him to relief. In these

circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 2

(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).

The trial court may also order depositions, interrogatories or a hearing. It appears that

Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if

Applicant is represented by counsel, and if not, 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.

Applicant challenged a companion case which was denied without written order by this Court

on April 13, 2012. Ex parte Payne, WR-76,539-01 (Tex. Crim. App. April 13, 2012). During that

proceeding, trial counsel filed two affidavits to respond to Applicant’s claim that he was ineffective

because he improperly informed Applicant of his right to appeal and failed to file a notice of appeal.

Counsel’s affidavits, which are included in these writ records, state that he did inform Applicant that

he had a right to appeal, but that Applicant never informed counsel that he wished to appeal. Those

statements were not addressed in the findings of fact signed by the trial court in these applications.

If Applicant did not inform counsel that he wished to appeal when he believed he had the right to

do so, that contradicts his allegation in these applications that he would not have pleaded guilty had

he known he would not have the right to appeal.

The trial court shall make supplemental findings of fact and conclusions of law regarding

Applicant’s failure to inform counsel that he wished to appeal and how that affects his claim that he

would not have pleaded guilty had he known he did not have the right to appeal. 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. 3

These applications 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: March 27, 2019 Do not publish