Sanderson, Brian Wayne

• Court: Court of Criminal Appeals of Texas
• Decided: September 23, 2020
• Docket: WR-91,593-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-91,593-01 & 91,593-02

EX PARTE BRIAN WAYNE SANDERSON, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 074277-01-D-WR & 074278-01-D-WR IN THE 320TH DISTRICT COURT FROM POTTER COUNTY

Per curiam.

ORDER

Applicant was convicted of possession of a controlled substance with the intent to deliver

and unlawful possession of a firearm by a felon. He was sentenced to forty years’ imprisonment on

each count. The Seventh Court of Appeals reformed the judgments to reflect that court costs were

waived but otherwise affirmed the judgments. Sanderson v. State, Nos. 07-18-00211-CR & 07-18-

00212-CR (Tex. App.—Amarillo July 30, 2019) (not designated for publication). Applicant filed

these applications for writs of habeas corpus in the county of conviction, and the district clerk

forwarded them to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends, among other things, that trial counsel, John D. Talley, failed to

communicate to the State that Applicant would accept the plea offers set out in a February 13, 2017 2

letter. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984). 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

Talley to respond to Applicant’s claim. 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 make findings of fact and conclusions of law as to whether the State

made the plea offers found in Applicant’s Exhibit A; if so, Talley timely conveyed the offers to

Applicant; Applicant told Talley that he would accept the offers before they expired; and Talley

timely communicated Applicant’s acceptance to the State. The trial court shall also determine

whether Applicant has established that the State would not have withdrawn the offers and the trial

court would have accept the plea agreements. See Missouri v. Frye, 566 U.S. 134, 147 (2012); Ex

parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013). 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 3

by the trial court and obtained from this Court.

Filed: September 23, 2020 Do not publish