Weaver, Anthony Durrell

• Court: Court of Criminal Appeals of Texas
• Decided: February 26, 2020
• Docket: WR-90,867-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,867-01

EX PARTE ANTHONY D. WEAVER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D-1-DC-06-206278-A IN THE 331ST DISTRICT COURT FROM TRAVIS COUNTY

Per curiam.

ORDER

Applicant was convicted of attempted harassment by a person in a correctional facility and

sentenced to 1 year imprisonment. He 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.

Applicant contends that his plea was involuntary because defense counsel told him he could

“take the case and go home,” and if the complainant was later “found in the wrong,” Applicant could

re-open the case. Applicant also states that counsel advised him that, if he did not accept the plea

offer, it could take months to go to trial and he might not get out of jail in time for the birth of his

son. Additionally, Applicant avers that counsel did not contact or call Applicant’s witnesses who 2

could verify that the complainant hit Applicant, and counsel did not ask other officers about the

incident or wait to see the Police Monitor’s report which sustained all of Applicant’s allegations

against the complainant. Applicant alleges that defense counsel failed to properly investigate this

case.

Applicant has alleged facts that, if true, might entitle him to relief. Brady v. United States,

397 U.S. 742 (1970). 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

counsel to respond to Applicant’s claim. 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 Applicant’s

plea was involuntary. The trial court may make any other findings and conclusions that it deems

appropriate in response to Applicant’s claims. Additionally, the trial court shall enter findings

regarding laches. Carrio v. State, 992 S.W.2d 486 (Tex. Crim. App. 1999); Ex parte Perez, 398

S.W.3d 206 (Tex. Crim. App. 2013).1 Further, the court shall determine whether Applicant suffers

1 Before making this determination, the trial court shall give Applicant the opportunity to respond and explain his delay. See Ex parte Smith, 444 S.W.3d 661, 670 (Tex. Crim. App. 2014) (“An applicant must be afforded this opportunity—irrespective of whether the State alleges the delay disadvantages its own position—before a court recommends or concludes that laches compels the application’s denial”). 3

any collateral consequences resulting from this conviction.

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: February 26, 2020 Do not publish