Watkins, Kenneth Terell

• Court: Court of Criminal Appeals of Texas
• Decided: January 27, 2021
• Docket: WR-72,915-06
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-72,915-06, 72,915-07 & 72,915-08

EX PARTE KENNETH TERELL WATKINS, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 007-0006-20-A, 007-1196-19-A, & 007-1774-19-A IN THE 7TH DISTRICT COURT FROM SMITH COUNTY

Per curiam.

ORDER

Applicant was convicted of evading arrest with a vehicle, unlawful possession of a firearm

by a felon, and bail jumping/failure to appear, and sentenced to imprisonment for thirty, twelve, and

five years, respectively. He filed these applications for writs of habeas corpus in the county of

conviction, and the district clerk forwarded them to this Court. See TEX . CODE CRIM . PROC. art.

11.07.

Applicant contends, among other things, that his plea was involuntary because trial counsel

threatened Applicant with consecutive sentences if he did not accept the plea offers. Applicant also

contends that he was denied his right to an appeal because counsel failed to timely file a notice of 2

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

U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013); Garza v. Idaho, 139 S.

Ct. 738 (2019); Roe v. Flores-Ortega, 528 U.S. 470 (2000); Ex parte Axel, 757 S.W.2d 369 (Tex.

Crim. App. 1988). 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 trial

counsel1 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 make findings of fact and conclusions of law as to whether trial counsel’s

performance was deficient and Applicant would have insisted on a trial but for counsel’s alleged

deficient performance. The trial court shall make findings of fact and conclusions of law as to

whether Applicant was denied his right to an appeal because trial counsel failed to timely file a

notice of appeal. The trial court shall make specific findings addressing whether Applicant instructed

counsel to perfect appeal. 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

1 If a defendant decides to appeal his conviction, trial counsel rather than appellate counsel has the duty to ensure that written notice of appeal is filed with the trial court. Jones, 98 S.W.3d at 703. 3

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 27, 2021 Do not publish