Gibbs, Andrew ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-80,245-03
EX PARTE ANDREW GIBBS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1249909 IN THE 209TH DISTRICT COURT
FROM HARRIS 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 a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated
robbery with a deadly weapon and sentenced to twenty-five years’ imprisonment. He did not appeal
his conviction. The First Court of Appeals affirmed his conviction. Gibbs v. State, No. 01-11-00934-
CR (Tex. App.–Houston [1st Dist.] June 14, 2012).
Applicant contends that his plea was involuntary because counsel promised Applicant that,
if he pled guilty, Applicant would receive probation. Applicant also alleges that counsel failed to
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inform Applicant of the consequences of his plea and failed to bring to the trial court’s attention that
Applicant’s sentence was outside the agreed range. Applicant also contends that counsel told
Applicant that she would not take the case to trial even if Applicant decided to do so, refused to
allow Applicant or Applicant’s family to testify at his sentencing, was not prepared for sentencing,
failed to object to the victim’s false testimony, and coerced Applicant into pleading guilty by
incorrectly telling Applicant that his co-defendant had “turned witness for the State.”
Applicant has alleged facts that, if true, might entitle him to relief. 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 and involuntary
plea. 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 in regard to Applicant’s
claim that his plea was involuntary. The trial court shall make findings as to whether the
performance of Applicant’s attorney was deficient and, if so, whether counsel’s deficient
performance prejudiced Applicant. The trial court shall also make findings of fact and conclusions
of law as to whether the punishment Applicant received was outside the agreed upon range. 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
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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: November 19, 2014
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