Primus, Alonzo Reshawn

• Court: Court of Criminal Appeals of Texas
• Decided: March 16, 2022
• Docket: WR-93,553-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-93,553-01

EX PARTE ALONZO RESHAWN PRIMUS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 13606-A IN THE 29TH DISTRICT COURT FROM PALO PINTO COUNTY

Per curiam.

ORDER

Applicant originally pleaded guilty to possession with intent to deliver a controlled substance

and received deferred adjudication community supervision. He was later adjudicated guilty and

sentenced to forty years’ imprisonment. The Eleventh Court of Appeals affirmed his conviction.

Primus v. State, No. 11-17-00284-CR (Tex. App. — Eastland April 19, 2018) (not designated for

publication). Applicant filed this application for a writ of habeas corpus in the county of conviction,

and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends, among other things, that his adjudication counsel was ineffective for

failing to convey Applicant’s acceptance of a six-year plea offer in exchange for his plea of true at

adjudication, and failing to ensure that Applicant was timely brought to court to enter his plea and 2

complete the adjudication proceedings. Applicant’s adjudication counsel has submitted an affidavit

responding generally to Applicant’s allegations, but that affidavit is not sufficient to address

Applicant’s claims.

According to Applicant, the amended motion to adjudicate that resulted in his eventual

adjudication was filed by the State on April 1, 2016, after Applicant was arrested for new offenses

in Collin County. Applicant submits a copy of a hand-written plea offer dated June 1, 2016, for six

years’ imprisonment in exchange for his plea of true at adjudication. According to Applicant, he told

adjudication counsel immediately that he wanted to accept the offer. According to adjudication

counsel’s affidavit, Applicant received and declined a five-year plea offer in open court while both

adjudication counsel and the prosecutor were present. However, the habeas record does not contain

a written plea offer for five years, or a transcript of the proceeding at which Applicant declined such

offer. Applicant was unable to attend multiple court settings in this case because he was arrested for

charges in both Tarrant and Collin Counties.

Applicant alleges that he believed that the six-year offer remained open, and was not aware

that the offer was withdrawn when the newly-elected District Attorney took office in January of

2017. Applicant alleges that he pleaded guilty to charges in Collin County (which were alleged as

violations of the terms of his deferred adjudication community supervision in this case) on May 25,

2017, only because he believed he already had an open offer of six years in this case, and would

therefore serve his eight-year sentences for the Collin County offenses concurrently. However,

Applicant was sent to TDCJ to begin serving his Collin County sentences, and was not brought back

to Palo Pinto County for the adjudication proceedings in this case until he filed a pro se motion for

a bench warrant in September of 2017. According to Applicant, he was not aware until that time 3

that the six-year offer was no longer available. Because he had already admitted to committing the

new offenses in Collin County, Applicant believed that it would be futile to dispute the motion to

adjudicate. He pleaded true without an agreed recommendation, and received a forty-year sentence.

Applicant alleges that adjudication counsel should have immediately conveyed his

acceptance of the six-year plea offer to the State, and should have taken steps to ensure that he was

brought before the court to complete the adjudication proceedings. Applicant alleges that had he

known that the six-year offer was no longer available, he would not have pleaded guilty to the Collin

County cases, but would have disputed both those charges and the adjudication in this case.

Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Argent, 393

S.W.3d 781, 784 (Tex. Crim. App. 2013); Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App.

1993). Accordingly, the record should be developed. The trial court is the appropriate forum for

findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order the trial

prosecutor to provide an affidavit detailing any plea offers that were made in exchange for

Applicant’s plea of true in this case, the date(s) upon which any such offers were made, whether

Applicant declined any such offers in writing or in open court, whether any such offers were only

open for a specified time, and the date(s) upon which any such offers were withdrawn.

The trial court shall order adjudication counsel to submit another affidavit, stating the date(s)

upon which any plea offers were conveyed to Applicant and the date(s) upon which any such offers

were declined in open court or in writing. If any plea offers were specifically open for a limited time,

adjudication counsel shall state whether Applicant was advised of this fact. Adjudication counsel

shall state whether there was any plea offer open at the time the new District Attorney took office

in January of 2017, and whether he took any steps to have Applicant brought back to Palo Pinto 4

County to dispose of the adjudication in this matter before that time. Adjudication counsel shall

state whether he advised Applicant that there was or was not a plea offer open before Applicant

pleaded guilty to the Collin County charges on May 25, 2017. In developing the record, the trial

court may use any means set out in Article 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 wants to be represented

by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX . CODE

CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify

this Court of counsel’s name.

The trial court shall supplement the habeas record with copies of the transcripts of any

hearings at which Applicant declined a plea offer on the record, or any written documents showing

that Applicant declined a plea offer for his plea of true at adjudication in this case. The trial court

shall make findings of fact and conclusions of law as to whether adjudication counsel’s performance

was deficient and whether Applicant was prejudiced. The trial court may make any other findings

and conclusions that it deems appropriate in response to Applicant’s claims.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: March 16, 2022 Do not publish