Mitchell-Smith, Jevante Trevion ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,242-01
EX PARTE JEVANTE TREVION MITCHELL-SMITH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1374104 IN THE 230TH 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 pleaded guilty to aggravated
robbery in exchange for deferred adjudication community supervision. He was later adjudicated
guilty and sentenced to fifteen years’ imprisonment. He did not appeal his conviction.
Applicant contends, among other things,1 that his plea of “true” to the allegation in the State’s
motion to adjudicate was involuntary, and that his adjudication counsel rendered ineffective
1
This Court has reviewed Applicant’s other claims and finds them to be without merit.
2
assistance because counsel failed to properly investigate the circumstances of the alleged violation
of the terms of Applicant’s community supervision before advising him to plead “true.”
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). 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 adjudication counsel to respond to Applicant’s claims of ineffective assistance of counsel.
Specifically, adjudication counsel shall state whether she investigated the allegation in the State’s
motion to adjudicate, and whether she requested or obtained a copy of the video which allegedly
showed Applicant assaulting another resident of the treatment program in which he was participating
as a condition of his community supervision. Adjudication counsel shall also state whether she
investigated the circumstances leading up to the violation, and whether she was aware of Applicant’s
performance prior to the violation. Adjudication counsel shall state whether she advised Applicant
of his options as to whether to plead “true” or have a hearing and present evidence to challenge the
allegation in the motion to adjudicate. Adjudication counsel shall state what advice, if any, she gave
to Applicant with respect to whether he would have the right to appeal from the adjudication. 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 a video exists
of the altercation which led to the motion to adjudicate Applicant guilty. If such a video does exist,
3
the trial court shall supplement the habeas record with a copy of the video. The trial court shall also
make findings of fact and conclusions of law as to whether the performance of Applicant’s
adjudication counsel was deficient and, if so, whether counsel’s deficient performance prejudiced
Applicant. 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 5, 2014
Do not publish