McAllister, Gregory W.

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,173-02
EX PARTE GREGORY W. MCALLISTER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F11-55238-W IN THE 363RD DISTRICT COURT
FROM DALLAS 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 originally pleaded guilty to
aggravated assault in exchange for seven years’ deferred adjudication community supervision. His
guilt was later adjudicated and he was sentenced to seven years’ imprisonment. He did not appeal
his adjudication.
Applicant contends that his adjudication counsel rendered ineffective assistance because
counsel met with Applicant only one time, on the date of the adjudication. Applicant alleges that
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counsel did not move for ten days to prepare for the adjudication hearing, and did not advise
Applicant about available defenses to the allegations in the motion to adjudicate him guilty.
Applicant alleges that adjudication counsel did not advise him of his right to a separate punishment
hearing, or of his right to present evidence in mitigation of punishment. Applicant alleges that
adjudication counsel simply advised him to enter an open plea of “true” to the allegations in the
motion to adjudicate. Applicant alleges that his plea of “true” was not knowingly and voluntarily
entered because it was based on adjudication counsel’s erroneous advice.
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, 294
(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court
shall order adjudication 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).
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 adjudication counsel was deficient and, if so, whether counsel’s deficient
performance prejudiced Applicant. The trial court shall make findings of fact and conclusions of
law as to whether Applicant’s plea of “true” was knowingly and voluntarily entered. 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.
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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: January 14, 2015
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