Toby, Kurt Patrick ( 2023 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,129-01
EX PARTE KURT PATRICK TOBY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1088685-A IN THE 263RD DISTRICT COURT
FROM HARRIS COUNTY
Per curiam. NEWELL, J., concurred.
ORDER
Applicant was originally placed on deferred adjudication community supervision for
aggravated assault with a deadly weapon for a period of ten years. He was later adjudicated and
sentenced to ten years’ imprisonment. Applicant 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.
This application was file-stamped in Harris County on November 24, 2008. An order
designating issues was signed by the trial judge on December 30, 2008. This application was not
received by this Court until September 7, 2022. There is no indication in the record of any action
by the trial court after the order designating issues was signed. Nor is there any indication as to why
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this application was pending in Harris County for so long without any action by the clerk or the trial
court.
Applicant contends that adjudication counsel was ineffective because he failed to convey a
plea offer and failed to adequately communicate with Applicant. Applicant has alleged facts that,
if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). 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).
As a preliminary matter, the trial court shall make findings of fact as to why no action was
taken by the trial court or the clerk between the entry of the order designating issues and the
forwarding of the application to this Court. The trial court shall obtain a response from Applicant
as to whether Applicant still wants to pursue this application, and shall include that response in the
supplemental record. If the trial court is unable to obtain such a response from Applicant, the trial
court shall detail the efforts that were made to obtain a response from Applicant. The trial court shall
then return the application to this Court.
If Applicant indicates that he does want to pursue this application, the trial court shall order
adjudication counsel to respond to Applicant’s claims. 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 supplement the habeas record with the transcript from the adjudication
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hearing. The trial court shall make findings of fact and conclusions of law as to whether adjudication
counsel’s performance was deficient and Applicant was prejudiced. Specifically, the trial court shall
make findings of fact and conclusions of law as to whether adjudication counsel was aware of a plea
offer by the State for two years confinement and, if so, whether adjudication counsel communicated
this offer to Applicant. 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: January 11, 2023
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