Carnes, Ronnie Lynn ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-65,597-01

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EX PARTE RONNIE LYNN CARNES, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR25969 IN THE 238TH DISTRICT COURT FROM MIDLAND COUNTY

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   Per curiam.

O R D E R  

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of driving while intoxicated, third offense and, following the revocation of probation, he was sentenced to two (2) years' imprisonment. He did not appeal his conviction.

Applicant contends that he received ineffective assistance of counsel resulting in an involuntary plea of guilty because counsel failed to investigate the availability of the prior driving while intoxicated offenses alleged for enhancement. Specifically, Applicant contends that if counsel had investigated, he would have ascertained that these offenses were not available for enhancement of the primary offense, and if counsel had made a proper objection, then Applicant would not have been convicted of a felony offense.

The trial court has made findings, based on the dates of conviction, that Applicant's 1993 conviction in Kimble County and his 1984 conviction in Ector County were legally available for use to enhance the primary offense committed on February 16, 2000, and so counsel was not ineffective for failing to challenge the use of these convictions. However, the dates the prior offenses were committed were the operative dates for determining the availability of the prior convictions for enhancement. See Ex parte Serrato, 3 S.W.3d 41 (Tex. Crim. App. 1999). Thus, Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond 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 findings of fact as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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.

The trial court shall supplement the habeas record with copies of all documents upon which its findings are based, including copies of the judgments from the prior convictions, affidavits from counsel, and any other relevant documents.

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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Delivered: October 4, 2006

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