Whitmire, John

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-79,341-01

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EX PARTE JOHN WHITMIRE, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 21327 IN THE 356TH DISTRICT COURT FROM HARDIN COUNTY

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Per curiam.   O R D E R

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 continuous sexual abuse of a child and sentenced to thirty years' imprisonment. He did not appeal his conviction.

Applicant contends that trial counsel, among other things, advised him that he would be eligible for release to parole in fifteen years and failed to conduct an investigation, prepare for trial, and explain the nature of the charges and the consequences of a guilty plea.

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); Ex parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012). 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 trial counsel to state whether he advised Applicant that he would be eligible for release to parole in fifteen years and to describe his investigation, preparation, and discussions with Applicant. 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

After reviewing counsel's response and the habeas record, including affidavits from Applicant's mother and wife, the trial court shall make findings of fact and conclusions of law as to whether counsel's conduct was deficient and, if so, whether Applicant would have insisted on a trial but for counsel's deficient conduct. Hill v. Lockhart, 474 U.S. 52 (1985). The trial court shall also direct the District Clerk to forward a copy of the reporter's record of the guilty plea hearing, if one exists. The trial court shall make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claims.

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: May 8, 2013

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