Larry, Anthony Joseph ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-83,669-01
EX PARTE ANTHONY JOSEPH LARRY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 5214 IN THE 8TH DISTRICT COURT
FROM RAINS 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 possession of
controlled substance and sentenced to sixty years’ imprisonment. The Twelfth Court of Appeals
affirmed his conviction. Larry v. State, No. 12-13-00072-CR (Tex. App.—Tyler May 30, 2014) (not
designated for publication).
Applicant contends, among other things, that his trial counsel rendered ineffective assistance
because he misadvised Applicant of the likelihood of an acquittal and did not present mitigating
evidence at punishment.
2
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984); Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013). 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 claim of ineffective assistance of counsel. The
trial court may use any means set out in TEX . CODE CRIM . 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 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 specific findings addressing the advice
counsel gave Applicant with respect to any plea offers and the viability of a jury trial. If the trial
court finds that counsel erred in advising Applicant about any plea offers, the trial court shall also
make findings detailing whether there is a reasonable probability that: (1) he would have accepted
the offer; (2) the prosecution would not have withdrawn the offer; and (3) the trial court would not
have refused to accept the plea bargain. The trial court shall also make findings of fact addressing
Applicant’s claim that counsel was ineffective for not presenting mitigation testimony from
Applicant’s family members at the punishment phase of the trial. 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 claims for habeas corpus relief.
3
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: October 7, 2015
Do not publish