Toby, Kurt Patrick

• Court: Court of Criminal Appeals of Texas
• Decided: January 11, 2023
• Docket: WR-94,129-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,129-01

EX PARTE KURT PATRICK TOBY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1088685-A IN THE 263RD DISTRICT COURT FROM HARRIS COUNTY

Per curiam. NEWELL, J., concurred.

ORDER

Applicant was originally placed on deferred adjudication community supervision for

aggravated assault with a deadly weapon for a period of ten years. He was later adjudicated and

sentenced to ten years’ imprisonment. Applicant 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.

This application was file-stamped in Harris County on November 24, 2008. An order

designating issues was signed by the trial judge on December 30, 2008. This application was not

received by this Court until September 7, 2022. There is no indication in the record of any action

by the trial court after the order designating issues was signed. Nor is there any indication as to why 2

this application was pending in Harris County for so long without any action by the clerk or the trial

court.

Applicant contends that adjudication counsel was ineffective because he failed to convey a

plea offer and failed to adequately communicate with Applicant. Applicant has alleged facts that,

if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). 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).

As a preliminary matter, the trial court shall make findings of fact as to why no action was

taken by the trial court or the clerk between the entry of the order designating issues and the

forwarding of the application to this Court. The trial court shall obtain a response from Applicant

as to whether Applicant still wants to pursue this application, and shall include that response in the

supplemental record. If the trial court is unable to obtain such a response from Applicant, the trial

court shall detail the efforts that were made to obtain a response from Applicant. The trial court shall

then return the application to this Court.

If Applicant indicates that he does want to pursue this application, the trial court shall order

adjudication counsel 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). If the trial court elects to hold a hearing, it shall

determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by

counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM .

PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this

Court of counsel’s name.

The trial court shall supplement the habeas record with the transcript from the adjudication 3

hearing. The trial court shall make findings of fact and conclusions of law as to whether adjudication

counsel’s performance was deficient and Applicant was prejudiced. Specifically, the trial court shall

make findings of fact and conclusions of law as to whether adjudication counsel was aware of a plea

offer by the State for two years confinement and, if so, whether adjudication counsel communicated

this offer to Applicant. The trial court may make any other findings and conclusions that it deems

appropriate in response to Applicant’s claims.

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: January 11, 2023 Do not publish