Wilson, Lamisha Marshall

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-80,865-01

EX PARTE LAMISHA MARSHALL WILSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 241-0793-12-A IN THE 241ST DISTRICT COURT FROM SMITH 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 pleaded guilty to manufacture or

delivery of a controlled substance, and was sentenced to twenty years’ imprisonment. She did not

appeal her conviction.

On February 26, 2014, this Court remanded to the trial court to obtain affidavits and findings

addressing Applicant’s claims that her trial counsel gave her deficient advice and that her guilty plea

was not knowingly and voluntarily entered. Trial counsel had provided an affidavit before remand,

and provided a second affidavit after remand. In his second affidavit, trial counsel states that when 2

filing his first affidavit, he had mistaken Applicant’s case for that of another individual with a similar

set of facts. Counsel’s second affidavit is almost the same as his first affidavit, except that in his first

affidavit he stated that he advised Applicant as to the incorrect punishment range, and in his second

affidavit he states that he advised Applicant as to the correct punishment range applicable to the

offense as charged. In his second affidavit, counsel also states that he and Applicant discussed the

parole implications of the drug free zone allegation, whereas in his first affidavit he did not mention

such discussions. Also, in his second affidavit, counsel makes reference to the possibility that

Applicant could have pleaded guilty to the offense with the drug free zone allegation in exchange

for a fifteen-year sentence. There is no mention elsewhere in the record of any fifteen-year plea

offer. Counsel does not provide any details about what is contained in his files to support the

statements he makes in his second affidavit, and does not explain why he filed a sworn affidavit

before remand without reviewing those files.

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 hold a live hearing to resolve the issues in this case. The trial court 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 supplement the habeas record with a transcript of Applicant’s original

plea proceedings, and with a transcript of the habeas hearing. The trial court shall make findings of

fact as to what plea offers were made prior to Applicant’s actual plea, and as to what the specific

terms of those plea offers were. The trial court shall make findings of fact as to whether trial counsel 3

correctly advised Applicant of the effect of the drug free zone allegation on Applicant’s punishment

range and parole eligibility. The trial court shall make findings of fact as to whether Applicant was

admonished on the record as to the punishment range she would be facing with and without the drug

free zone allegation. The trial court shall make 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 prejudiced Applicant. The trial court shall make findings of fact and conclusions of

law as to whether Applicant understood the nature and consequences of her plea. 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

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 shall

be obtained from this Court.

Filed: July 23, 2014 Do not publish