BURELL, ROBERT DARRELL Jr. ( 2017 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-60,418-04
EX PARTE ROBERT DARRELL BURELL, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 31312-D IN THE 3RD DISTRICT COURT
FROM ANDERSON 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 writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967).
Applicant was charged by indictment with one count of aggravated assault on a public
servant, one count of attempted aggravated assault on a public servant, and one count of assault on
a public servant. He apparently pleaded guilty to two counts of aggravated assault on a public
servant in exchange for two thirty-year sentences, running concurrently with each other but
consecutively with a prior sentence Applicant was serving when he committed these offenses in
prison. He did not appeal his convictions.
2
Applicant contends, among other things,1 that his trial counsel rendered ineffective
assistance, rendering his guilty plea involuntary. Applicant alleges that he told trial counsel that he
wanted to plead not guilty and go to trial on the charges, but that trial counsel told him that he would
receive life sentences for all three counts and that they would be ordered to run consecutively if he
were convicted at trial.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 respond to Applicant’s claims of ineffective assistance of counsel.
Specifically, trial counsel shall state what advice he gave Applicant regarding the punishment ranges
applicable to each count of the indictment, and whether he advised Applicant that he would receive
three life sentences if he were convicted at trial. Trial counsel shall state whether he advised
Applicant that the sentences for each count could be ordered to run consecutively with each other
if Applicant were convicted at trial. Trial counsel shall state whether he advised Applicant to plead
guilty, and whether he was prepared to take the cases to trial if Applicant decided that he wanted to
do so. 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 first supplement the habeas record with copies of the indictment,
1
This Court has reviewed Applicant’s other claims and finds them to be without merit.
3
judgments, plea papers including any written admonishments and written plea agreement, and any
other documents relevant to Applicant’s claims. The trial court shall make findings of fact and
conclusions of law as to why the indictment appears to charge Applicant with attempted aggravated
assault of a public servant in Count II, but the plea documents and judgments indicate that Applicant
pleaded guilty to aggravated assault of a public servant in both Count I and Count II. 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 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 must
be requested by the trial court and shall be obtained from this Court.
Filed: April 5, 2017
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