Davison, Anthony Ray ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-81,772-02
EX PARTE ANTHONY RAY DAVISON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 24451 IN THE 278TH DISTRICT COURT
FROM WALKER 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 entered an open plea of guilty to
burglary of a building, and was sentenced to twenty years’ imprisonment. The Eleventh Court of
Appeals dismissed his appeal because notice of appeal was not timely filed. Davison v. State, No.
11-10-00300-CR (Tex. App. – Eastland, December 16, 2010).
Applicant contends that his plea was involuntary because he was admonished as to the
punishment range for the offense without enhancements, and stipulated only to the primary offense
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but not to the enhancements. Applicant also alleges that his trial counsel rendered ineffective
assistance because counsel knew that Applicant had been admonished as to and had stipulated to
only the primary offense without enhancements, but did not object when a probation officer testified
at the punishment hearing that Applicant had pleaded “true” to the enhancements. Applicant alleges
that trial counsel was also ineffective for failing to object when the trial court sentenced Applicant
to twenty years’ imprisonment, when Applicant believed that he was pleading guilty only to a state
jail felony. Applicant also alleges that trial counsel failed to file a timely notice of appeal in this
case, although trial counsel did file timely notice of appeal in a companion case.
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 trial counsel to respond to
Applicant’s claims of ineffective assistance of counsel. Specifically, counsel shall state what advice
she gave Applicant regarding his options for trial or plea. Counsel shall state whether she advised
Applicant of the punishment range for the offense as enhanced, and why she did not object to the
written admonishments, which contained the punishment range for the un-enhanced offense only.
Trial counsel shall state whether she considered objecting when the probation officer testified that
Applicant had pleaded “true” to the enhancements, and when the trial court imposed a sentence for
the enhanced offense, after having admonished Applicant only as to the punishment range for the
un-enhanced state jail felony offense. Trial counsel shall state why she filed notice of appeal in the
companion case, but not in this case. The trial court may use any means set out in TEX . CODE CRIM .
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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 supplement the record with transcripts of the plea and sentencing
proceedings in this case. The trial court shall make findings of fact and conclusions of law as to
whether Applicant’s open plea of guilty was knowingly and voluntarily entered. The trial court shall
then make findings of fact and conclusions of law as to whether the performance of Applicant’s trial
counsel was deficient and, if so, whether counsel’s deficient performance prejudiced Applicant. 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: November 19, 2014
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