Ta, Tuan Trung

• Court: Court of Criminal Appeals of Texas
• Decided: December 14, 2022
• Docket: WR-94,322-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,322-01

EX PARTE TUAN TRUNG TA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1282590-A IN THE 228TH DISTRICT COURT FROM HARRIS COUNTY

Per curiam. YEARY , J., filed a concurring opinion in which SLAUGHTER , J., joined.

ORDER

Applicant entered an open guilty plea to murder and was sentenced to forty years’

imprisonment. He did not appeal his conviction. 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 plea was involuntary due the ineffective

assistance of his trial attorneys. Specifically, Applicant claims that his attorneys failed to research

the law and facts necessary to present a self-defense or a defense-of-a-third person claim, as well as

a mitigation case at punishment centered on sudden passion. Applicant also claims that his attorneys

prevented him from testifying during the punishment hearing against his express wishes. 2

Applicant has alleged facts that, if true, might entitle him to relief. Hill v. Lockhart, 474 U.S.

52 (1985); Johnson v. State, 169 S.W.3d 223 (Tex. Crim. App. 2005). 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 Applicant trial attorneys to respond to

Applicant’s claims. In developing the record, the trial court may use any means set out in Article

11.07, § 3(d). It appears that Applicant is represented by counsel. If the trial court elects to hold a

hearing, it shall determine if Applicant is represented by counsel, and if not, 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. See TEX . CODE CRIM . PROC. art. 26.04.

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

performances were deficient and Applicant would have insisted on a trial but for counsel’s alleged

deficient performances. The trial court shall make specific findings as to (1) whether counsel

incorrectly advised Applicant that he would have to plead guilty in order to make a sudden passion

mitigation claim at punishment, and if so, how that advice impacted Applicant’s decision to plead

guilty; (2) whether counsel presented a sudden passion mitigation claim at punishment, including

whether counsel filed a sentencing memorandum arguing for a sudden passion finding under seal in

the trial court; and (3) whether Applicant’s belief that he would testify at punishment impacted his

decision to plead guilty. The trial court shall also make specific findings as to whether trial counsel

appropriately advised Applicant about his right to testify on his own behalf, whether counsel

prevented him from testifying against his wishes, and if so, whether Applicant was harmed. The trial

court may make any other findings and conclusions that it deems appropriate in response to

Applicant’s claims. 3

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: December 14, 2022 Do not publish