DocketNumber： WR-72,309-03
Filed Date： 9/28/2011
Status： Precedential
Modified Date： 9/16/2015
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 four counts of aggravated sexual assault and sentenced to thirty-eight years' imprisonment on each count. The Fifth Court of Appeals affirmed his convictions. Kupper v. State, No. 05-03-00486-CR (Tex. App.-Dallas Jan. 14, 2004, pet. ref'd).
Applicant contends, among other things, that counsel failed to convey a plea offer of twenty years that the State made on the afternoon (1) of March 7, 2003. The trial court found that the State did not make an offer on this date; that because no offer was made, counsel could not have conveyed this offer; and that Applicant would not have accepted an offer of twenty years had the State made such an offer. We believe that these findings are not consistent with the record and that the trial court should make further findings of fact and conclusions of law and resolve inconsistencies in the record.
The trial court found that during a pretrial hearing held on March 10, 2003, counsel and the prosecutor, Deborah Harrison, were referring to a "contemplated offer, not to an actual offer." This finding is based in part on a sworn affidavit counsel filed in response to Applicant's claim. During the March 10 hearing, however, neither counsel nor Harrison referred to a "contemplated offer" made on the afternoon of March 7, 2003. (2)
The trial court also found that Applicant would not have accepted an offer of twenty years had the State made such an offer. This finding is based in part on counsel's affidavit. In his affidavit, counsel stated that Applicant had never indicated that he would take an offer of any kind. According to counsel, Applicant said, "If I'm going to get time, they are going to have to give it to me." During the March 10 hearing, however, counsel stated that Applicant had rejected an offer of fourteen years because he did not have the opportunity to discuss it with his family and friends. "At that time," counsel stated, "he [Applicant] turned down the plea bargain until he had the opportunity to think about it."
The trial court shall resolve these inconsistencies in the record. The the trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).
Applicant appears to be represented by counsel. If he is not and 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.
After making further findings, the trial court shall determine whether the counsel's performance was deficient and, if so, whether his deficient performance prejudiced Applicant. 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.
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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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. A copy of the reporter's record of Applicant's trial shall also be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: September 28, 2011
Do not publish
1. On the record before this Court, Applicant is not arguing that the State made this offer on the morning of March 7, when Applicant was brought to the courthouse.
2. In a motion for a continuance filed on March 10, 2003, counsel also did not refer to a "contemplated offer." Rather, he stated that Harrison told him that the previous offer would be increased by six years.