Hendrix, Michael P. ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-WR-65,462-01

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EX PARTE MICHAEL P. HENDRIX, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2005F00039 IN THE 5^TH JUDICIAL DISTRICT COURT FROM CASS 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 pleaded guilty to aggravated assault with a deadly weapon and was sentenced to six years' imprisonment. He did not appeal his conviction.

Applicant contends that his plea was involuntary because he was not competent to enter the plea, had not been properly advised as to the nature of the offense to which he was pleading, and was unable to consult with counsel because the plea hearing was conducted via closed-circuit television. Applicant also contends that counsel was ineffective for failing to properly advise him as to the nature of the charges prior to having him sign incomplete "fill-in-the-blank" plea documents, and for failing to present evidence of his psychiatric problems. Finally, Applicant alleges that the prosecution failed to disclose favorable evidence to the defense prior to the entry of the plea. 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). In the appropriate case, the trial court may rely on its personal recollection. Id.

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 and conclusions of law in regard to Applicant's claim that his plea was involuntary. The court shall make findings as to whether there was any evidence before the court that Applicant was not competent to enter the plea, and if so, what that evidence was. If there was any such evidence, the court shall make findings as to what steps, if any, were taken to determine Applicant's competency to enter the plea.

The trial court shall also make findings as to whether Applicant was present in open court to enter the plea, and if not, whether and how he was able to consult with counsel. If the plea hearing was conducted via closed-circuit television, the court shall make findings as to when and where Applicant signed the plea documents, and as to what those plea documents contained at the time Applicant signed them. The court shall make findings as to whether Applicant entered a judicial confession, and if he did, the court shall supplement the habeas record with a copy of the judicial confession. The court shall make findings as to whether counsel properly advised Applicant of the nature of the offense to which he was pleading, and the applicable punishment range for that offense. The court shall make findings as to whether the affidavit of non-prosecution signed by the complainant was disclosed to the defense prior to the entry of the plea, and as to whether that affidavit constituted material exculpatory evidence. 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. 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.

Filed: October 11, 2006

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