Dillard, Terry Cox ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-52,086-02

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EX PARTE TERRY COX DILLARD, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 15755 IN THE 2ND DISTRICT COURT FROM CHEROKEE 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 tampering with physical evidence and sentenced to six years' imprisonment. He did not appeal his conviction.

Applicant contends that his guilty plea was involuntary and his trial counsel rendered ineffective assistance because: Applicant's plea was entered pursuant to an agreement that punishment would be assessed at two years, and counsel did not seek to have Applicant's plea withdrawn when that agreement was not followed; counsel did not investigate or litigate whether Applicant concealed the evidence with knowledge that an investigation was in progress or with intent to impair its availability as evidence in the official proceeding related to that investigation; and counsel did not advise Applicant of his right to appeal with appointed counsel and a free record. The State has filed no response and the trial court has made no findings of fact.

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 as to whether counsel investigated the intent and knowledge elements of this offense, what he advised Applicant concerning the State's ability to prove those elements, whether he attempted to withdraw Applicant's guilty plea if a plea agreement was not followed; and what he advised Applicant concerning his right to appeal. The court should determine 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.

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: August 30, 2006

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