Teel, Harvey Luther

• Court: Court of Criminal Appeals of Texas
• Decided: December 7, 2016
• Docket: WR-85,974-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-85,974-01

EX PARTE HARVEY LUTHER TEEL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. WRIT08950 IN THE 196TH DISTRICT COURT FROM HUNT 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 this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was charged with one count of

continuous sexual abuse of a child, four counts of aggravated sexual assault of a child, and three

counts of indecency with a child by contact. He entered an open plea of guilty to continuous sexual

abuse of a child, and was sentenced to forty years’ imprisonment. The Sixth Court of Appeals

affirmed his conviction. Teel v. State, No. 06-14-00161-CR (Tex. App. — Texarkana, June 26,

2015) (not designated for publication). 2

Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance

by advising him to enter an open plea of guilty to the trial court because the trial judge knew

Applicant’s parents and would be more lenient in sentencing. Applicant alleges that trial counsel

assured him that he would receive the minimum 25-year sentence if he entered an open plea to the

trial court. Applicant alleges that he and trial counsel were surprised when a different trial judge

presided at the punishment hearing, but trial counsel did not move to withdraw his plea.

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 claim of ineffective assistance of counsel.

Specifically, trial counsel shall state what advice, if any, he gave to Applicant with regard to pleading

guilty or going to trial on the charges. Trial counsel shall state whether any plea offers were made

by the State, and if so, whether such offers were communicated to Applicant. Trial counsel shall

state whether he promised Applicant a 25-year sentence if he entered an open plea to the trial court.

Trial counsel shall state whether he advised Applicant that the trial judge would be more likely to

be lenient because the judge knew Applicant’s family, and whether this consideration affected trial

counsel’s advice as to how Applicant should plead. Trial counsel shall state whether he considered

moving to withdraw Applicant’s plea when it became clear that a different judge would be presiding

over the sentencing than had accepted Applicant’s plea. 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

1 This Court has considered Applicant’s other claims and finds them to be without merit. 3

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 and conclusions of law as to whether the

performance of Applicant’s trial counsel 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. 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 requested by the trial court and shall be obtained from this Court.

Filed: December 7, 2016 Do not publish