Thara, Farhan

• Court: Court of Criminal Appeals of Texas
• Decided: December 23, 2015
• Docket: WR-84,108-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-84,108-01

EX PARTE FARHAN THARA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W12-45380-P (A) IN THE 203RD DISTRICT COURT FROM DALLAS 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 convicted of attempted

possession of a controlled substance and sentenced to 45 days in the county jail.

Applicant contends that his no contest plea was involuntary. He argues that trial counsel

failed to properly admonish him on possible negative immigration consequences resulting from the

plea. Padilla v. Kentucky, 559 U.S. 356 (2010). It is not clear whether the offense of conviction was

a felony or a misdemeanor. 2

After an encounter with police, Applicant was found to have a substance that was alleged to

be cocaine with an estimated weight of 1.1 grams. He was charged with possessing more than one

but less than four grams of cocaine, which is a third-degree felony. TEX . CONTROLLED SUBSTANCES

ACT § 481.115(c). According to the written plea agreement, Applicant was admonished that he was

charged with “PCS 1G Attempt” and that the offense was a third-degree felony. Writ at 64. But

attempted possession of one gram or more but less than four grams of cocaine would be a state-jail

felony, and attempted possession of less than one gram of cocaine would be a class A misdemeanor.

TEX . CONTROLLED SUBSTANCES ACT § 481.115; TEX . PENAL CODE § 15.01(d). The trial court had

granted the State’s motion to reduce the offense to “Attempted PCS under 1 gram,” Applicant

judicially confessed that he “attempted to possess a controlled substance ... less than 1 gram...,” and

findings entered at the time of the plea indicate that the offense was “Attempt PCS under 1 gram.”

Trial counsel also states in an affidavit that the offense was reduced to a class A misdemeanor. The

judgment indicates that the offense was “Attempted Poss CS” with a sentence of 45 days in the

county jail. It appears the conviction was for a class A misdemeanor, but the judgment indicates that

the offense was a third-degree felony.

The trial court shall resolve whether the offense was a misdemeanor or a felony. To do so,

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, and if Applicant is not represented by habeas counsel, the trial court 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. 3

art. 26.04.

The trial court shall make findings of fact and conclusions of law resolving whether the

offense level for Applicant’s offense of conviction was a misdemeanor or a felony. 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 shall

be obtained from this Court.

Filed: December 23, 2015 Do not publish