EX PARTE EARNEST AUSTIN (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-72,521-02 
EX PARTE EARNEST AUSTIN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 05-266-A IN THE 130TH DISTRICT COURT 
FROM MATAGORDA 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 possession of a controlled substance and sentenced to seven years' imprisonment. He did not appeal his conviction.

Applicant alleges inter alia that counsel's advice to plead guilty was based on an inadequate pre-trial investigation. Specifically, he alleges that if counsel had investigated further, counsel would have discovered that the chemical analysis of the substance seized in the vehicle was never performed and, thus, there was no evidence that Applicant committed this offense. Also, counsel would have discovered that punishment for this state jail felony offense was improperly enhanced to the third degree felony punishment range because Applicant's two prior state jail felonies were not final felony convictions. Finally, Applicant alleges the seven-year sentence assessed was illegal because the State failed to properly enhance punishment to the third degree felony punishment range.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006). 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) to resolve the fact issues. In the appropriate case, the trial court may rely on its personal recollection. Id. The trial court shall order trial counsel to file an affidavit addressing the following: (1) whether counsel performed a pre-trial investigation of the facts in the challenged cause; (2) whether counsel verified that the chemical analysis of the substance seized in the vehicle was performed; and, (3) whether counsel verified that the two prior state jail felony convictions used to enhance punishment in the challenged cause were final felony convictions. The trial court shall instruct the clerk to forward copies of the plea papers in the challenged cause, including the trial court's admonishments, and Applicant's judicial confession. The trial court shall also instruct the clerk to forward copies of the judgments in the prior state jail felony convictions which were used to enhance punishment in the challenged cause.

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 counsel was ineffective. Specifically, the trial court shall make findings of fact as to whether counsel performed a pre-trial investigation of the facts in the challenged cause. The trial court shall also make findings of fact as to whether counsel verified that the chemical analysis of the substance seized in the vehicle was performed. The trial court shall make findings of fact as to whether counsel verified that the prior state jail felony convictions used to enhance punishment in the challenged cause were final felony convictions. The trial court shall make findings of fact as to whether punishment could validly be enhanced to the third degree felony punishment range in the challenged cause. 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: January 13, 2010

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