EX PARTE WILLIAM LEE CAIN, IV (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-73,263-01, -02 
EX PARTE WILLIAM LEE CAIN, IV, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NOS. 6882 & 6883 IN THE 21ST DISTRICT COURT 
FROM LEE 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 aggravated assault and burglary of a habitation and sentenced to sixteen years' imprisonment in each case. Applicant's sentences are running concurrently. He did not appeal his conviction.

Applicant contends that his plea was involuntary (1) because he was mentally ill, heavily medicated and incompetent at the time he entered his plea; (2) because his attorney was not prepared; and (3) because he was frightened into pleading guilty because of a death threat from an officer in the jail where he was confined. In addition, Applicant contends that trial counsel rendered ineffective assistance because (a) counsel failed to investigate and prepare a defense, (b) failed to interview witnesses who would have testified that Applicant acted in self-defense, (c) failed to request an investigator to ascertain any bias on the part of the State's witnesses, (d) failed to adequately communicate with Applicant, (e) failed to request a competency hearing, (f) failed to investigate a threat which induced Applicant to plead guilty, and (g) improperly advised Applicant that he was eligible for mandatory supervision release. 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 shall order Applicant's trial counsel to file an affidavit responding to Applicant's claims. In addition, 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 make findings of fact and conclusions of law in regard to Applicant's claim that his plea was involuntary. The trial court shall also make findings of fact and conclusions of law 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: February 10, 2010

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