Simpson, Carl Ray ( 2006 )

  

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NOS. WR-63,413-01 & WR-63,413-02

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EX PARTE CARL RAY SIMPSON, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. CR-02K-160 & CR-03K-170 IN THE

222^ND DISTRICT COURT OF DEAF SMITH COUNTY

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Per curiam.   O R D E R  

This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant pleaded guilty to two felony offenses of possession of a controlled substance with intent to deliver, and punishment was assessed at two concurrent eighteen year terms of confinement. No direct appeal was taken.

Applicant contends he received ineffective assistance of counsel. Specifically, Applicant asserts that his plea was not knowingly and voluntarily entered because he was erroneously advised by trial counsel that, if Applicant pleaded guilty, his sentences would run concurrently with Applicant's federal sentence  .

The trial court has entered findings of fact and conclusions of law, finding that trial counsel's advice regarding the operation of Applicant's sentences was not within the range of competence for a criminal attorney and therefore, constituted deficient performance and cast doubt on the validity of Applicant's guilty plea. However, we do not believe that those factual findings are sufficient to completely resolve the issues presented. Because Applicant has stated facts requiring resolution and because this Court does not hear evidence, it is necessary for the matter to be remanded to the trial court for resolution of those issues. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order an affidavit from trial counsel, Jeff Blackburn, or it may order a hearing. In the appropriate case the trial court may also rely on its personal recollection.

If the trial court elects to hold a hearing, it shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.

The trial court shall then make findings of fact as to whether trial counsel advised Applicant that, if Applicant pleaded guilty, his sentences would run concurrently with Applicant's federal sentence.   The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.

Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.Crim.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within 90 days of the date of this order. ⁽¹⁾ A supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE TWELFTH DAY OF APRIL, 2006.

EN BANC

DO NOT PUBLISH

1. In the event any continuances are granted, copies of the order granting the continuance shall be provided to this Court.

2. Any extensions of this time period shall be obtained from this Court.