Dobyns, Wallace Clark

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NOS. WR-63,441-01,

WR-63,441-02, and WR-63,441-03

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EX PARTE WALLACE CLARK DOBYNS, Applicant

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ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NUMBERS 99-01-0002M-CR-A, 04-05-0059M-CR-A,

AND 04-08-0106M-CR-A IN THE 97TH DISTRICT

COURT MONTAGUE COUNTY

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Per curiam.

O R D E R  

     These are applications for writs of habeas corpus that were transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pled guilty to aggravated assault. The trial court deferred a finding of guilt and placed Applicant on community supervision for three years. Applicant states that during the period of supervision, the State filed a motion to adjudicate. The record indicates that Applicant's community supervision was not revoked but modified and extended for one year.

Later, Applicant was charged in two separate indictments with manufacturing methamphetamine. Consequently, Applicant states, the State filed another motion to adjudicate in the aggravated assault case. Then, after Applicant's community supervision would have expired, the State filed an amended motion to adjudicate. It is unclear when the trial court issued a warrant or capias.

An adjudication hearing was later held in conjunction with Applicant's guilty pleas in the two manufacturing methamphetamine cases. At the hearing the State requested to proceed on the original motion rather than the amended motion. After two discussions off the record, the State requested to proceed on the amended motion, dismissing its first count, and Applicant pled true to the remaining allegations. Applicant was adjudicated guilty of the aggravated assault. He was sentenced in accordance with a plea agreement to concurrent terms of eighteen years on the aggravated assault charge and the two manufacturing methamphetamine charges.  

In these applications for a writs of habeas corpus, Applicant argues that his pleas were not voluntarily entered due to counsel providing ineffective assistance. He claims that counsel erroneously allowed him to plea true to the amended motion to adjudicate that was not timely filed and that the motion to adjudicate did not contain new allegations for which his community supervision could be revoked. See Crockett v. State, 840 S.W.2d 160, 162 (Tex. Crim. App. 1992) (finding an amended motion to revoke, filed after the expiration of the probationary period, to be void), citing Guillot v. State, 543 S.W.2d 650, 653 (Tex. Crim. App. 1976) ("the right of the court to revoke is limited to those violations of probation alleged in the revocation motion filed prior to the expiration of the probationary period"); Wright v. State, 640 S.W.2d 265 (Tex. Crim. App. 1982) (stating that when a probationer is returned to probation, probation may not be revoked without any determination of a new violation).

He further asserts that he had numerous affirmative defenses that could have been raised to counter the motion's allegations but that he was not informed of them. See Stanfield v. State, 718 S.W.2d 734 (Tex. Crim. App. 1986) (stating that inability to make probation payments is an affirmative defense for a probationer to raise and to prove by a preponderance of evidence); Bawcom v. State, 78 S.W.3d 360 (Tex. Crim. App. 2002) (stating that the timing of the State's efforts to locate the probationer, including whether those efforts occurred before or after the filing of a motion to revoke and the issuance of a capias, are factors that reflect on the diligence of the State's efforts); cf. Tex. Code Crim. Proc. art. 42.12 § 24 (effective June 18, 2003, due diligence defense only applicable to allegation of failure to report). He states that had he been properly informed of these facts, he would not have taken the plea agreement for concurrent terms of eighteen years on the three cases.

The State has not responded to Applicant's claims and the trial court has not entered findings of fact and conclusions of law. It is this Court's opinion that more information is needed before this Court can render a decision on these grounds for review. Thus, further information must be submitted, including an affidavit from trial counsel addressing Applicant's claims, copies of all the motions to adjudicate filed in the aggravated assault case, as well as any other documents the trial court believes will be helpful in resolving Applicant's claims, and information regarding when the trial court issued a warrant or capias for the motion to adjudicate that resulted in Applicant being adjudicated guilty.  

Because this Court cannot hear evidence, Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum. The trial court shall resolve these issues as set out in Article 11.07, Section 3(d), of the Texas Code of Criminal Procedure. The trial court shall order an affidavit from trial counsel and may order depositions, interrogatories, or hold a hearing. In the appropriate case, the trial court may rely on its personal recollection.

If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent, and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Article 26.04 of the Texas Code of Criminal Procedure, appoint an attorney to represent him at the hearing. Following the receipt of additional information, the trial court shall determine whether Applicant was denied effective assistance of counsel and whether his pleas were voluntarily entered. The trial court shall also make any further findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's application for habeas corpus relief.

Further, because this Court does not hear evidence, Ex parte Rodriguez, 334 S.W.2d at 294, this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. ⁽¹⁾ 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 returned to this Court within 120 days of the date of this order. ⁽²⁾  

DELIVERED: December 14, 2005

DO NOT PUBLISH

1.

¹ In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

2.

² Any extensions of this time period should be obtained from this Court.