Lovingood, Brandon ( 2014 )


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  •              IN THE COURT OF CRIMINAL APPEALS
    OF TEXAS
    NO. WR-81,778-01
    EX PARTE BRANDON LOVINGOOD, Applicant
    ON APPLICATION FOR A WRIT OF HABEAS CORPUS
    CAUSE NO. 5668 IN THE 424TH DISTRICT COURT
    FROM SAN SABA 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 continuous sexual
    abuse of a child and sentenced to twenty-five years’ imprisonment. He did not appeal his conviction.
    Applicant contends his plea was involuntary because counsel failed to seek the suppression
    of a recording of a telephone call that was taken in violation of Applicant’s Fifth Amendment right
    to counsel. Applicant also contends that his plea was involuntary because counsel advised Applicant
    incorrectly as to his parole eligibility. Ex parte Moussazadeh, 
    361 S.W.3d 684
    , 691–92 (Tex. Crim.
    App. 2012); TEX . GOV ’T . CODE § 508.145(a). Applicant has alleged facts that, if true, might entitle
    2
    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 may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).
    It appears that Applicant is represented by counsel. The trial court shall determine whether
    Applicant is represented by counsel, and if not, 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 specific findings as to whether
    counsel failed to move to suppress the recorded jail phone conversation. If the court finds counsel
    erred, it shall make specific findings as to whether there is a reasonable probability that, but for
    counsel’s errors, Applicant would have insisted on a trial. The trial court shall also make specific
    findings as to whether counsel told Applicant that he would be eligible for parole in twelve and a
    half years, despite a conviction for continuous sexual abuse of a child. If the court finds counsel gave
    inaccurate advice as to parole, it should make specific findings as to whether that advice induced
    Applicant to plead guilty. 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
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    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: September 17, 2014
    Do not publish
    

Document Info

Docket Number: WR-81,778-01

Filed Date: 9/17/2014

Precedential Status: Precedential

Modified Date: 9/16/2015