Durbin, Thomas John ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-79,127-01

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EX PARTE THOMAS JOHN DURBIN, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W11-6082-K(A) IN THE CRIMINAL DISTRICT COURT #4 FROM DALLAS 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered an open plea of guilty to evading arrest or detention, and was sentenced to ten years' imprisonment.

Applicant contends, inter alia, ⁽¹⁾ that his trial counsel rendered ineffective assistance because counsel failed to communicate a plea offer to Applicant, failed to advise Applicant of his appellate rights, and failed to timely file a notice of appeal.

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); Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). 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 counsel to respond to Applicant's claims of ineffective assistance of trial counsel. Specifically, trial counsel shall state whether the State extended any plea offers prior to trial, and if so, whether counsel communicated such offers to Applicant. Counsel shall also state whether he advised Applicant of his right to appeal in an open plea situation, and if so, whether Applicant indicated a desire to appeal. If Applicant indicated a desire to appeal, counsel shall state whether or not he advised the trial court of Applicant's desire to appeal, or moved to withdraw from the representation so that appellate counsel could be appointed. 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 make findings of fact and conclusions of law as to whether the State made any plea offers, and as to whether trial counsel communicated any such offers to Applicant. The trial court shall make findings as to why the plea papers reflect a recommendation from the State of 15 months' state jail, and as to why Applicant was admonished as to the punishment range for a third degree felony, rather than a second degree felony. The trial court shall make findings as to whether Applicant was denied his right to a meaningful appeal because Applicant's counsel failed to timely file a notice of appeal. 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 shall be obtained from this Court.

Filed: March 27, 2013

Do not publish

1. This Court has reviewed Applicant's other claims, in his original and amended applications, and finds them to be without merit.