Reynolds, Thomas

• Court: Court of Criminal Appeals of Texas
• Decided: June 3, 2009
• Docket: WR-71,985-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-71,985-01 AND WR-71,985-02 EX PARTE THOMAS REYNOLDS, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 20010D00659-409-1 AND 20000D05772-409-1

IN THE 409^TH JUDICIAL DISTRICT COURT

FROM EL PASO 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 pleaded guilty to one charge of aggravated assault in exchange for ten years' deferred adjudication community supervision, and one charge containing two counts of engaging in organized criminal activity, in exchange for ten years' straight probation. Applicant's straight probation was revoked in 2004, and he was granted shock probation in that cause. In 2008, Applicant's guilt was adjudicated and his probation revoked, and he was sentenced to seventeen years' imprisonment for the aggravated assault and ten years' imprisonment for the engaging in organized criminal activity, to run concurrently. He did not appeal his convictions.

Applicant contends, inter alia, that his original trial counsel rendered ineffective assistance because counsel coerced him into pleading guilty to both charges by telling him that he would stay in county jail for more than two years awaiting trial, and that he would receive up to 40 years' imprisonment if he took the cases to trial. Applicant also alleges that he was not competent at the time of the pleas because he was denied psychiatric medications in jail, and alleges that counsel knew that he was not competent. Applicant alleges that counsel promised him that he could get him "off" probation in three years. He also alleges that it was an explicit condition of the plea agreements that his probation would be transferred to Klamath County, Oregon, but that this did not take place. Applicant alleges that he received a travel permit, and that after approximately one year of living in Oregon and reporting by mail, he was informed by a probation officer that he would no longer have to report by mail.

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). 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 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 make findings as to whether Applicant could have been subject to a 40-year sentence if he were convicted of all charges at trial. The trial court shall supplement the record with information regarding the type of charge that was taken into consideration in sentencing in these two cases under Texas Penal Code §12.45, and shall make findings as to what the range of punishment for that charge would have been. The trial court shall make findings as to whether Applicant's pleas were knowingly and voluntarily entered.

The trial court shall also make findings as to whether Applicant's probation was transferred to Klamath County, Oregon, and whether such a transfer was an explicit part of the plea agreements. If Applicant's probation was not transferred but he was allowed to move to Oregon, the trial court shall make findings as to whether Applicant was informed that he would no longer have to report by mail to his probation officer. The trial court shall make findings as to whether it was this failure to report that caused the revocation of Applicant's probation. 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 claims for habeas corpus relief.

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. 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 3, 2009

Do not publish