EX PARTE ANTHONY RAYDELL MASON (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-70,436-01

EX PARTE ANTHONY RAYDELL MASON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 9654 IN THE 1ST JUDICIAL DISTRICT COURT

FROM JASPER 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 fifteen years' imprisonment. He did not appeal his conviction.

Applicant contends that his trial counsel rendered ineffective assistance because failed to request an evaluation to determine Applicant's sanity at the time of the offense, or his competency to enter a plea. Applicant alleges that counsel was aware of Applicant's history of psychological problems, but did not request such evaluations, and did not advise Applicant of the availability of such evaluations. Applicant also alleges that his plea was not knowingly and voluntarily entered, because counsel failed to properly advise him of the rights he was waiving. The habeas record does not contain copies of the plea documents or admonishments.

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 indictment, the judgment, and the plea papers from this cause. The trial court shall make findings of fact as to whether counsel was aware of Applicant's history of psychological problems, and if so, whether counsel requested a sanity or competency evaluation for Applicant. The trial court shall make findings as to whether counsel investigated or advised Applicant of possible defenses to the charge. The trial court shall also make findings as to whether Applicant was properly advised of the nature of the charge, the applicable punishment range, the rights he was waiving, and the consequences of 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: September 10, 2008

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