Whiteside, Zachary

• Court: Court of Criminal Appeals of Texas
• Decided: December 13, 2017
• Docket: WR-87,658-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-87,658-01

EX PARTE ZACHARY WHITESIDE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2015-CR-2958-W1 IN THE 399TH DISTRICT COURT FROM BEXAR COUNTY

Per curiam.

ORDER

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 was convicted of possession with

intent to deliver a controlled substance and sentenced to forty-five years’ imprisonment. The Fourth

Court of Appeals affirmed his conviction. Whiteside v. State, No. 04-16-00171-CR (Tex. App.—San

Antonio Mar. 8, 2017) (not designated for publication).

Applicant contends, among other things, that his trial counsel rendered ineffective assistance

because he did not explain the possibility that Applicant would face the habitual offender

punishment range. Applicant argues that this caused his refusal of a 20-year plea offer to be 2

involuntary.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013). Counsel has

provided an affidavit and the trial court has made findings, but 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 shall order trial counsel

to provide a supplemental response to Applicant’s claim of ineffective assistance of counsel. 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 Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make supplemental findings of fact and conclusions of law as to whether

the performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient

performance caused Applicant’s decision to reject a plea offer to be involuntary. Should the trial

court determine that counsel was deficient, it shall determine whether there is a reasonable

probability that: (1) Applicant would have accepted the earlier offer if counsel had not given

ineffective assistance; (2) the prosecution would not have withdrawn the offer; and (3) the court

would not have refused to accept the plea bargain. 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. A supplemental transcript containing all 3

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 forwarded to this Court within 120 days of the date of this order. Any extensions of time must be

requested by the trial court and shall be obtained from this Court.

Filed: December 13, 2017 Do not publish