EX PARTE TONY DOUGLAS LAY (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-69,560-01

EX PARTE TONY DOUGLAS LAY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 35481-B IN THE 124TH JUDICIAL DISTRICT COURT

FROM GREGG COUNTY

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered an open plea of guilty to aggravated assault, and was sentenced to twenty years' imprisonment. He waived his right to appeal the conviction.

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because he failed to object to defects in the indictment, failed to investigate evidence provided by Applicant in his defense, and told Applicant that if he did not plead guilty he would be facing five to ninety-nine years in prison.

Applicant alleges that he presented counsel with statements from various witnesses to the offense, who would have been willing to testify that Applicant and the complainant were mutual participants in a fist fight. Although counsel acknowledged the information contained in the statements, he allegedly told Applicant that the State's witnesses would testify that Applicant was the first aggressor. Applicant also alleges that he informed counsel that the indictment was defective, in that the date alleged as the date upon which Applicant was convicted of the enhancement offense was incorrect. Apparently, counsel advised Applicant to plead guilty to the primary offense, and the State waived the enhancement allegation.

More importantly, however, the indictment in this case alleges only a simple assault. Although Applicant was advised of the punishment range applicable to a second degree felony aggravated assault, and stipulated to committing aggravated assault "as charged in the indictment," the indictment did not charge aggravated assault. There is nothing in the record to indicate whether the State had or introduced evidence of serious bodily injury to the complainant. If Applicant had gone to trial on the indictment as it existed at the time of the plea, he would have been subject to punishment for a misdemeanor offense only.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

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 make findings of fact as to whether trial counsel was aware that the indictment alleged only a simple assault. If counsel was not aware of this fact, the trial court shall make findings as to whether there existed evidence of serious bodily injury to support a conviction for aggravated assault. If counsel was aware of the omission in the indictment, the trial court shall make findings as to why counsel advised Applicant to plead guilty to an offense more serious than that with which he was charged. The trial court shall also make findings as to whether the date alleged in the enhancement paragraph was the correct date upon which Applicant was convicted of burglary of a habitation in cause number 29010-A in the 188th District Court of Gregg County. If the date is incorrect, the trial court shall make findings as to whether Applicant pointed out the discrepancy to counsel prior to the entry of the plea. The trial court shall make findings as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's 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. Any extensions of time shall be obtained from this Court.

Filed: April 9, 2008

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