Presley, Cody Wade

• Court: Court of Criminal Appeals of Texas
• Decided: December 17, 2014
• Docket: WR-82,341-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,341-01

EX PARTE CODY WADE PRESLEY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 11-10-26136-D IN THE 377TH DISTRICT COURT FROM VICTORIA 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 unlawful delivery

of controlled substance and sentenced to six years’ imprisonment. He did not appeal his conviction.

Applicant contends that his plea was involuntary because, among other things, counsel

wrongfully advised him he would be released after serving one-quarter of his sentence. Applicant

has alleged facts that, if true, might entitle him to relief. Ex parte Moussazadeh, 361 S.W.3d 684

(Tex. Crim. App. 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 2

findings of fact. 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. The trial court shall make specific findings addressing his claim

that counsel told him he would be automatically released after serving a certain proportion of his

sentence. If the court finds Applicant was so advised, it shall also make specific findings addressing

the claim that, but for this advice, Applicant would have insisted on a trial. 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: December 17, 2014 Do not publish