EX PARTE DAVID WADE McDERMETT (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-69,812-01

EX PARTE DAVID WADE McDERMETT, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 044962-A IN THE 59TH DISTRICT COURT

FROM GRAYSON 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 was charged with aggravated robbery with a deadly weapon. He pleaded guilty and the trial court deferred adjudication and imposed a term of community supervision. Following the State's motion to adjudicate guilt, Applicant was convicted of robbery and sentenced to eight years' imprisonment. The judgment of conviction included an affirmative deadly weapon finding. Applicant did not appeal his conviction.

Applicant contends, inter alia, that his plea was involuntary or the plea agreement was breached. Specifically, Applicant contends that he entered his plea in reliance on counsel's advice and the State's representation that the State would reduce the charged offense to simple robbery and delete the deadly weapon allegation. However, on adjudication, the court convicted Applicant of aggravated robbery and entered an affirmative deadly weapon finding.

The trial court has entered findings of fact that Applicant was convicted of simple robbery, not aggravated robbery, and that a nunc pro tunc judgment reflects the correct offense of conviction. The nunc pro tunc judgment is included in the current habeas record. However, the trial court has not made a finding as to whether there was an agreement concerning the deadly weapon allegation, and the plea papers are not included in the current habeas record. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Minott, 972 S.W.2d 760 (Tex. Crim. App. 1998). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. 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 and court records. 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 and conclusions of law in regard to Applicant's claim that his plea was involuntary. 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 the plea papers, 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: May 21, 2008

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