McCullough, Jared Daniel ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-92,914-01
EX PARTE JARED DANIEL MCCULLOUGH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR15-0397-392-A IN THE 392ND DISTRICT COURT
FROM HENDERSON COUNTY
Per curiam.
ORDER
Applicant was convicted of burglary of a habitation and sentenced to 12 years’
imprisonment. Applicant filed this application for a writ of habeas corpus in the county of
conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.
First, Applicant contends that his plea was involuntary due to ineffective assistance of
counsel. Specifically, he avers that he informed defense counsel of his mental illness, and
Applicant’s mother gathered medical records documenting Applicant’s mental illness, but defense
counsel informed them that Applicant’s mental illness “did not matter.” Applicant asserts that
defense counsel did not independently investigate Applicant's mental illness. And although
Applicant requested a mental health evaluation to determine his competence, defense counsel did
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not attempt to obtain such an evaluation. Instead, defense counsel informed Applicant that he had
already obtained “a deal.” Applicant “[is] and was not fit to stand trial or fight [his] case.”
Applicant further states that defense counsel did not “even try” to prepare a defense, although
Applicant told counsel that the house he was charged with burglarizing was his own home. Applicant
avers that he was led to believe that he was pleaded guilty on exchange for a non-aggravated
sentence, but while in TDCJ, he learned that the sentence was aggravated. He argues that, as a result
of defense counsel’s errors, Applicant’s guilty plea was invalid and involuntary.
Second, Applicant contends that TDCJ is requiring him to serve his sentence as if it is
aggravated. Our review of the record indicates that the State abandoned the deadly weapon finding
as part of the plea agreement. And while the initial judgment was unclear concerning the deadly
weapon finding, the two nunc pro tunc judgments expressly abandoned the deadly weapon
allegation. All three judgments reflect that this conviction was for a second-degree felony.
Applicant has alleged facts concerning his ineffective assistance claims and his claim that
his sentence is being improperly treated as aggravated that, if true, might entitle him to relief. Brady
v. United States, 397 U.S. 742 (1970); TEX . CODE CRIM . PROC. arts. 42.03, 42A.559, 42.0199.
Accordingly, the record should be developed. The trial court is the appropriate forum for findings
of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial counsel to
respond to Applicant’s claims. In addition, the trial court shall order the Texas Department of
Criminal Justice’s Office of the General Counsel to obtain a response from a person with knowledge
of the relevant facts. In developing the record, the trial court may use any means set out in Article
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 wants to be represented by counsel, the trial court shall appoint
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counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is
appointed or retained, the trial court shall immediately notify this Court of counsel’s name.
The trial court shall make findings of fact and conclusions of law as to whether Applicant’s
plea was involuntary and as to whether his sentence is being improperly treated as aggravated. The
trial court may make any other findings and conclusions that it deems appropriate in response to
Applicant’s claims.
The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: September 29, 2021
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