Ray, James Earl

• Court: Court of Criminal Appeals of Texas
• Decided: June 24, 2009
• Docket: WR-72,149-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-72,149-01 & WR-72,149-02 EX PARTE JAMES EARL RAY, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NO. 13, 615-A & 15, 049-A IN THE 173^RD DISTRICT COURT

FROM HENDERSON COUNTY

Per curiam.

O R D E R

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 possession of a controlled substance with intent to deliver and sentenced to twenty years' imprisonment, and delivery of a controlled substance and sentenced to twenty-two years' imprisonment. He did not appeal his convictions.

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance by failing to convey a plea bargain offer and informing Applicant that he would receive probation in exchange for his open plea of guilty.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. 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 as to whether the State, through D. Bennett, offered Applicant a plea bargain agreement of ten years' imprisonment with both sentences to run concurrently (such offer was allegedly dated October 9, 2006). If such an offer was made by the State, the trial court shall make findings as to whether or not that offer was conveyed to Applicant. The trial court shall make findings as to whether counsel made any assurances to Applicant as to what sentence he would receive in exchange for his plea of guilty. The trial court shall make findings of fact as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: June 24, 2009

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