Thompson, Terrance

• Court: Court of Criminal Appeals of Texas
• Decided: April 18, 2012
• Docket: WR-76,629-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-76,629-01 EX PARTE TERRANCE THOMPSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 2008-216 IN THE 421ST DISTRICT COURT

FROM CALDWELL COUNTY

Per curiam.

O R D E R

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 pleaded guilty to three counts of possession with the intent to deliver a controlled substance and was sentenced to fifteen years' imprisonment on each count. He did not appeal his convictions.

Applicant contends, among other things, that his plea was rendered involuntary and that his sentences are illegal. On November 9, 2011, we remanded this application to determine whether trial counsel's failure to discover that the convictions alleged as punishment enhancements were not final was deficient and whether Applicant would have insisted on a trial had counsel informed him that his punishment could not have been enhanced. On remand, the trial court found that counsel's conduct was deficient and that Applicant might have insisted on a trial had he known that his punishment could not have been enhanced. We now believe that the record should be further developed.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Hill v. Lockhart, 474 U.S. 52 (1985). 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 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 further findings of fact and conclusions of law as to whether Applicant had felony convictions other than those alleged in the indictment that could have been used to enhance his punishment. The trial court shall also make findings and conclusions as to whether Applicant will be prejudiced if counts one and two are set aside and the remainder of the plea agreement is preserved, and whether the State wishes to accept a modified plea agreement or have the entire plea undone. ⁽¹⁾ 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. A copy of the plea papers shall also be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: April 18, 2012

Do not publish

1. We have held that the State may "waive an illegal portion of a judgment and maintain the remainder of the plea agreement." Ex parte Ervin, 991 S.W.2d 804, 817 (Tex. Crim. App. 1999).