Smith, Shannon Cole ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,043-01
EX PARTE SHANNON COLE SMITH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 60527-A
IN THE 23RD DISTRICT COURT FROM BRAZORIA 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 sexual
assault and was sentenced to eighteen years’ imprisonment. There was no direct appeal.
Applicant complains that his guilty plea was involuntary because trial counsel should have
filed a motion to suppress. See Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Morrow,
952 S.W.2d 530 (Tex. Crim. App. 1997). According to trial counsel’s affidavit:
The police were notified by teletype that there was a felony warrant for [Applicant]
out of North Carolina. The warrant was for theft of a vehicle described as and black
Ford Fl50 with North Carolina plates XPW3807, which [Applicant] was possibly
driving. The police located the vehicle at a motel. The police contacted the front desk
at the motel to see if [Applicant] was indeed checked into the motel. The police were
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advised that [Applicant] was staying in room 118. Prior to entering the room the
police contacted the District Attorney’s Office prior to making entry into the motel
room. The police knocked on the door, waited a few seconds then made entry with
the key obtained from the front office.
Applicant was found naked in bed with a thirteen-year-old girl, who was also naked, and according
to the habeas record, Applicant admitted to having had sexual intercourse and oral sex with the child
several times.
The existence of a warrant for Applicant’s arrest would permit the police to enter his motel
room as was done. See Payton v. New York, 445 U.S. 573 (1980); Green v. State, 78 S.W.3d 604
(Tex. App.—Fort Worth 2002). The police report in the habeas record, however, does not specify
that there was an arrest warrant. It states, rather, that the police “received information (TELETYPE)
from North Carolina requesting that we attempt to locate [Applicant, who was] possibly driving a
stolen vehicle....” There is no further evidence in the habeas record concerning the arrest warrant.
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 supplement the habeas record provided to this Court with information
concerning whether there was a warrant for Applicant’s arrest or not. It shall then make any
additional findings of fact and conclusions of law that it deems relevant and appropriate to the
disposition of Applicant’s claim for habeas corpus relief.
To provide the information, 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.
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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 5, 2014
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