Smith, Robert Allen

• Court: Court of Criminal Appeals of Texas
• Decided: November 14, 2018
• Docket: WR-88,933-04
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-88,933-03 & 88,933-04

EX PARTE ROBERT ALLEN SMITH, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. CVHC-XX-XXXXXXX & CVHC-XX-XXXXXXX IN THE 198TH DISTRICT COURT FROM BANDERA 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 these applications for writs of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts

of possession of methamphetamine and sentenced to ten and forty years’ imprisonment. The Fourth

Court of Appeals dismissed his appeals. Smith v. State, Nos. 04-18-00242-CR & 04-18-00243-CR

(Tex. App.—San Antonio June 6, 2018) (not designated for publication).

Applicant contends, among other things, that he repeatedly told counsel he was not guilty and

that counsel failed to request a speedy trial, communicate with Applicant, and ask Applicant whether 2

he wanted to file an appeal after sentencing. In a separate ground, Applicant contends that his pleas

were involuntary.

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

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 order trial counsel to respond to Applicant’s ineffective assistance of counsel and involuntary

plea claims. 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 him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether (1) counsel’s

conduct was deficient at the no-contest and adjudication-of-guilt stages of trial; (2) Applicant was

prejudiced and his pleas were rendered involuntary; and (3) Applicant was denied his right to appeal

after being sentenced because counsel failed to ask whether he wanted to appeal or to file notices of

appeal. 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. 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 must be 3

requested by the trial court and shall be obtained from this Court.

Filed: November 14, 2018 Do not publish