Nichols, Robert AKA Robert James Nichols

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-89,109-01
EX PARTE ROBERT NICHOLS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 65-13-B (A) IN THE 25TH DISTRICT COURT
FROM GONZALES 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 pleaded guilty to driving while
intoxicated in exchange for a ten-year probated sentence. His community supervision was later
revoked and he was sentenced to nine years’ imprisonment.
Applicant contends that his trial counsel rendered ineffective assistance and that his plea at
revocation was not knowingly and voluntarily entered, because he believed that he was pleading
“true” in exchange for a six-year sentence. The record contains a plea agreement, signed by
Applicant and approved by the trial court in which the State agreed to recommend a six-year
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sentence after revocation and also agreed not to pursue a new felony charge. However, the trial court
sentenced Applicant to nine years’ imprisonment after revocation, and certified that Applicant had
waived his right to appeal. The plea papers at revocation do not contain an express waiver of appeal.
Although this Court has held that there is no such thing as a binding plea agreement in the context
of a probation revocation, if Applicant’s counsel advised him to plead “true” and to waive his right
to appeal without advising him that the plea agreement was not binding on the trial court, Applicant
might have relied on counsel’s advice to his detriment. If Applicant did not expressly waive his right
to appeal from the revocation, trial counsel should have advised him that he retained such a right and
that the trial court’s certification was incorrect.
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 trial 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 first supplement the habeas record with a copy of any express waiver of
his right to appeal from the revocation of his community supervision, and with a transcript of the
plea hearing. If Applicant did not expressly waive his right to appeal from the revocation, the trial
court shall make findings of fact and conclusions of law as to whether Applicant was advised that
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he did have a right to appeal, and if so whether he indicated a desire to appeal from the revocation.
The trial court shall make findings of fact and conclusions of law as to whether the performance of
Applicant’s revocation counsel was deficient and, if so, whether counsel’s deficient performance
prejudiced Applicant. The trial court shall also 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 claims 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. 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 must
be requested by the trial court and shall be obtained from this Court.
Filed: November 7, 2018
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