EX PARTE SEAN MICHAEL POWELL (other)

Texas Judiciary Online - HTML Opinion     Close This Window

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-70,976-01

EX PARTE SEAN MICHAEL POWELL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 16124-B(1) IN THE 104TH DISTRICT COURT

FROM TAYLOR 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 habitation and sentenced to 15 years' imprisonment. He did not appeal his conviction.

Applicant contends that his plea was involuntary because counsel advised him he would get life imprisonment unless he pleaded guilty. He further contends that he is a paranoid schizophrenic and was taking medication which impeded his understanding of the court proceedings when he entered his plea. He alleges that counsel failed to investigate whether he suffered from mental illness and failed to request that his competency be evaluated.

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 counsel advised Applicant that he would be sentenced to life imprisonment unless he pleaded guilty and, if so, the reasons for such advice; (2) whether counsel discovered that Applicant suffers from mental illness when he conducted his pre-trial investigation and, if so, what counsel discovered; and, (3) whether counsel requested that Applicant's competency be evaluated before he entered his plea and, if not, why counsel did not believe that a competency evaluation was necessary. The trial court shall also supplement the record with a copy of the court reporter's notes from the plea hearing. 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 court shall make findings of fact as to whether counsel advised Applicant that he would be sentenced to life imprisonment unless he pleaded guilty. The trial judge shall also make findings of fact as to whether counsel discovered that Applicant suffers from a mental illness when he conducted his pre-trial investigation and, if so, what counsel discovered. The trial judge shall also make findings of fact as to whether counsel requested that Applicant's competency be evaluated before he entered his plea and, if not, as to why counsel did not believe such an evaluation was necessary. 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: December 10, 2008

Do not publish