EX PARTE KENNETH TERRELL WATKINS (other)

OF TEXAS

NO. WR-72,915-02

EX PARTE KENNETH TERRELL WATKINS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 241-1113-08-B IN THE 241ST JUDICIAL DISTRICT COURT

FROM SMITH 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 possession of a controlled substance in a drug-free zone, and originally received ten years deferred adjudication community supervision. His guilt was later adjudicated, and he was sentenced to five years imprisonment. He did not appeal his conviction.

Applicant contends that his trial counsel rendered ineffective assistance because he told him he had to sign for 5 years, and advised Applicant incorrectly as to the nature and consequences of his plea. Applicant s counsel has provided an affidavit which responds only generally to Applicant s allegations, and does not indicate whether he correctly advised Applicant as to the nature and consequences of the plea. Furthermore, counsel s affidavit, the plea documents, and the trial court s findings of fact and conclusions of law all reflect that Applicant was advised that he was pleading guilty to a second degree felony. In fact, the offense as charged was a third degree felony with the drug-free zone allegation having the effect of increasing the minimum sentence and the potential fine, but not of enhancing the punishment range to that of a second degree felony, as Applicant was admonished. There is nothing in the written admonishments or plea documents to show whether Applicant was advised at the time of his original plea what the consequences might be if he were later adjudicated 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 obtain another affidavit from trial counsel to specifically address Applicant s habeas allegations. The trial court may also use any means set out in Tex. Code Crim. Proc. art. 11.07, 3(d).

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 as to why Applicant was admonished as to the punishment range for a second degree felony, in light of the offense charged in the indictment. The trial court shall supplement the record with any documents reflecting that Applicant was advised as to the correct range of punishment for the offense as charged, and whether Applicant was advised as to the consequences of a later adjudication of guilt when he entered his original plea. The trial court shall also make findings as to whether counsel investigated the facts of the offense and discussed them with Applicant prior to the entry of the plea. The trial court shall make findings as to whether counsel advised Applicant of his right to a jury trial. The trial court shall also make findings as to whether counsel ever told Applicant that he could get the charge reduced to a misdemeanor, or that he could get the drug-free zone allegation removed from the judgment and sentence. The trial court shall make findings as to whether the drug-free zone allegation was dropped when Applicant s guilt was adjudicated, and if not, why Applicant was given a sentence lower than the minimum for a third degree felony with a drug-free zone allegation. 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: March 31, 2010

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