Whitaker, Tracy Dion

• Court: Court of Criminal Appeals of Texas
• Decided: February 2, 2022
• Docket: WR-91,581-06
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-91,581-06

EX PARTE TRACY DION WHITAKER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 18CR20817C IN THE 123RD DISTRICT COURT FROM SHELBY COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to engaging in organized criminal activity and was sentenced to fifty

years’ imprisonment. 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 plea was involuntary because trial counsel failed to consult with a

mental health expert and failed to investigate or call Applicant’s co-defendant to testify. 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). 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 2

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 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: February 2, 2022 Do not publish