Dunlap, Timothy Wayne ( 2022 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,731-02
EX PARTE TIMOTHY WAYNE DUNLAP, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 007-0185-18-A IN THE 7TH DISTRICT COURT
FROM SMITH COUNTY
Per curiam.
ORDER
Applicant entered an open plea of guilty to evading arrest or detention with a motor vehicle
and was sentenced to fifty years’ imprisonment. The Twelfth Court of Appeals affirmed his
conviction. Dunlap v. State, No. 12-18-00180-CR (Tex. App. — Tyler June 28, 2019) (not
designated for publication). 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.
Applicant contends, among other things, that his plea was involuntary because trial counsel
advised him that if he entered an open plea, he would receive no more than forty years’
imprisonment. Applicant also alleges that trial counsel failed to object to use of the same
2
enhancement allegations twice, and failed to argue that the evidence did not support an affirmative
deadly weapon finding. Applicant has alleged facts that, if true, might entitle him to relief. Hill v.
Lockhart, 474 U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013).
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 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 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 first ensure that the habeas record is supplemented with copies of the
Brooks notice of intent to seek enhanced punishment in this case, the pre-sentencing investigation
report, and transcripts of the plea and punishment proceedings. The trial court shall make findings
of fact as to whether Applicant pleaded “true” to any punishment enhancements in this case, and if
so, why the judgment does not reflect any plea or findings as to punishment enhancements. The trial
court shall make findings of fact and conclusions of law as to whether trial counsel’s performance
was deficient and Applicant would have insisted on a trial but for counsel’s alleged deficient
performance. 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
3
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: November 09, 2022
Do not publish