EX PARTE MICHAEL DWAYNE COLEMAN (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-34,326-03

EX PARTE MICHAEL DWAYNE COLEMAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. C-1-008473-1059070 IN CRIMINAL DISTRICT COURT NO. 1

FROM TARRANT 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 convicted of burglary of a building and sentenced to 18 months' confinement in the state jail division of the Texas Department of Criminal Justice. The Second Court of Appeals dismissed his appeal because he had waived his right to appeal. See Coleman v. State, No. AP-02-07-386-CR, (Tex. App - Fort Worth, 2007) (not designated for publication).

Applicant contends that his plea was involuntary because counsel advised him that he would be facing life imprisonment unless he pleaded guilty. 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. 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 that it shall order counsel to file an affidavit addressing: (1) whether he advised Applicant that he would be facing life imprisonment unless he pleaded guilty; (2) whether there were any offenses not alleged in the indictment which could have been used to enhance Applicant's sentence; and, (3) whether counsel believes that Applicant freely, knowingly, and voluntarily entered his plea. 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 and conclusions of law in regard to Applicant's claim that his plea was involuntary. Specifically, the trial judge shall make findings of fact as to whether counsel advised Applicant that he would face life imprisonment unless he pleaded guilty. The trial judge shall also make findings of fact as to whether there were any additional offenses to those alleged in the indictment which could have been used to enhance Applicant's sentence. The trial judge shall also make findings as to whether Applicant freely, knowingly, and voluntarily entered his plea. 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: June 18, 2008

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