EX PARTE THOMAS WAYNE SUTTON, II (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-70,378-01

EX PARTE THOMAS WAYNE SUTTON, II, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W06-44071-R(A) IN THE 265TH JUDICIAL DISTRICT COURT

FROM DALLAS 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 pleaded guilty to burglary of a habitation, and was sentenced to twelve years' imprisonment. He did not appeal his conviction.

Applicant contends that his trial counsel rendered ineffective assistance because she incorrectly advised Applicant as to the consequences of his plea. Specifically, Applicant alleges that counsel told him he would be out on parole within a year if he pleaded guilty to this offense and three other offenses pursuant to a plea agreement, and that he would be sentenced to 25 to 99 years if he did not plead guilty pursuant to the agreement. The habeas record does not contain copies of the charging instrument, the plea papers, or the judgment from this charge or the other charges to which Applicant 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. 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 first supplement the habeas record with copies of the charging instrument, the plea documents, and the judgment in this cause. The trial court shall then make findings of fact as to whether parole eligibility was an affirmative part of the plea agreement in this case. The trial court shall also make findings as to what the applicable punishment range for this offense was, as charged, and as to whether Applicant was properly admonished as to the applicable punishment range prior to entering his 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: August 20, 2008

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