Gibbs, Terry Lee

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,490-02
EX PARTE TERRY LEE GIBBS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 10CR2978-83-1 IN THE 212TH DISTRICT COURT
FROM GALVESTON COUNTY
Per curiam.
ORDER
Applicant was convicted of possession of a controlled substance, cocaine, with intent to
deliver, and sentenced to 6 months’ imprisonment in state jail. 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.
On August 29, 2022, the trial court entered an order designating issues and directed a
response from the DPS Crime Lab. On September 30, 2022, in compliance with the trial court’s
order, the Seized Drugs Section Supervisor for the DPS Crime Lab submitted an affidavit. The State
filed an amended answer on January 13, 2023, concluding that Applicant’s guilty plea was induced
by lab results subject to an inference of falsity. Accordingly, the lab results were material to the
conviction. Therefore, the State concluded, Applicant is entitled to relief.
On January 23, 2023, the district clerk properly forwarded this application to this Court under
Texas Rule of Appellate Procedure 73.4(b)(5). However, the application was forwarded before the
trial court made findings of fact and conclusions of law.
Applicant has alleged facts that, if true, might entitle him to relief. Ex Parte Coty, 418
S.W.3d 597 (Tex. Crim. App. 2014) (op. on reh'g). The trial court is the appropriate forum for
findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court may use any means set
out in Article 11.07, § 3(d), to further develop the record.
It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing,
it shall determine if Applicant is represented by counsel, and if not, 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. 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. The trial court may make any other findings and conclusions that it deems
appropriate in response to Applicant’s claim. Additionally, the trial court shall enter findings
regarding laches. Carrio v. State, 992 S.W.2d 486 (Tex. Crim. App. 1999); Ex parte Perez, 398
S.W.3d 206 (Tex. Crim. App. 2013).1
1
Before making this determination, the trial court shall give Applicant the opportunity to
respond and explain his delay. See Ex parte Smith, 444 S.W.3d 661, 670 (Tex. Crim. App. 2014)
(“An applicant must be afforded this opportunity—irrespective of whether the State alleges the
delay disadvantages its own position—before a court recommends or concludes that laches
compels the application’s denial”).
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: February 15, 2023
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