White, Jessie Jerome

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-79,680-02
EX PARTE JESSIE JEROME WHITE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 17671-B(1) IN THE 329TH DISTRICT COURT
FROM WHARTON 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 evading arrest
or detention with a motor vehicle and sentenced to twenty years’ imprisonment. The Thirteenth
Court of Appeals affirmed the conviction. White v. State, No. 13-12-00174-CR (Tex. App.—Corpus
Christi Apr. 25, 2013) (not designated for publication).
Applicant, through habeas counsel, raises three claims of involuntary plea based on trial
counsel’s alleged ineffective assistance and one claim alleging that his sentence is illegal. See
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Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App.
1997); Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006). Trial counsel has not responded, and
there are no findings of fact and conclusions of law from the trial court.
Applicant pled guilty to evading in a vehicle but not true to a deadly weapon allegation. The
punishment range was enhanced from that of a state-jail felony to that of a second-degree felony. A
jury found the deadly weapon allegation true, and the trial court assessed punishment at twenty years
in prison.
In grounds one and three, Applicant complains that he was not informed of the correct
punishment range. According to Applicant, trial counsel informed him that the punishment range
was two to ten years, and the trial court never admonished him as to any punishment range, either
orally or in writing. He indicates that he rejected the State’s offer of two years and opted to plead
guilty to the offense and not true to the deadly-weapon allegation. Applicant claims he would not
have rejected the plea offer had he been properly admonished that the correct punishment range was
two to twenty years. See Lafler v. Cooper, 132 S. Ct. 1376 (2012).
In ground two, Applicant complains that trial counsel misinformed him about the evidence.
Applicant states that he asked counsel before trial to show him all the evidence against him,
including video recordings. He says trial counsel showed him one video, but at trial, according to
Applicant, the State played a video that he had not seen. According to the appellate opinion, at least
two “dash-cam” videos were played for the jury. Applicant argues that, due to the nature of the
unseen video, he would not have rejected the two-year plea offer had he viewed the video. See
Lafler, supra.
In ground four, Applicant alleges that his twenty-year sentence is not lawful. Applicant
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claims that he did not enter a plea as to the enhancement paragraphs contained in the indictment and
that the trial court did not make any findings or oral pronouncements regarding the enhancement
paragraphs. He asserts, therefore, that the judgment incorrectly notes a finding of true, and he argues
that “without any findings regarding the enhancement paragraphs, the applicable punishment range
for the offense in the instant case would have been two to ten years. Thus, Applicant’s twenty year
sentence was illegal without findings on the enhancement paragraphs.” See Coffey v. State, 979
S.W.2d 326 (Tex. Crim. App. 1998).
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 (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 claims 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, and if Applicant is no longer represented by habeas
counsel, 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, and it shall make findings of fact and conclusions of law
regarding Applicant’s illegal sentence claim. 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
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claims 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 18, 2015
Do not publish