EX PARTE GARY EDWARD BROCK SR. (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-54,946-08

EX PARTE GARY EDWARD BROCK SR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 10522 IN THE 29TH DISTRICT COURT

FROM PALO PINTO 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 indecency with a child by contact and sentenced to twenty years' imprisonment.

On April 14, 2010, this Court remanded this application to the trial court for findings of fact and conclusions of law. On September 10, 2010, the trial court made findings of fact and conclusions of law that were based on trial counsel's 2003 affidavit filed in response to an earlier writ application that was dismissed for non-compliance with the Rules of Appellate Procedure. The District Clerk forwarded counsel's affidavit on March 14, 2011. The trial court recommended that relief be denied.

Applicant contends that his plea was involuntary because his plea was induced by improper threats from his attorney. Specifically, he alleges that his lawyer had him sign "blank forms" and, among other things, threatened that he would work with the District Attorney's office to have Applicant sentenced for the maximum punishment. Applicant alleges that counsel made similar threats when Applicant's family was unable to pay the entire fee for counsel's representation. The habeas record contains no paperwork from the guilty plea, no response from the State, an affidavit from trial counsel addressing factual allegations from a prior writ application, and a recommendation from the trial court that this Court deny relief. The trial court's findings did not fully address all fact issues necessary to the resolution of the claims that were raised by Applicant and remanded to the trial court for resolution. According to the trial court, Applicant has raised no new grounds and trial counsel's old affidavit "addresses all of the grounds alleged in the current pleading." Though Applicant may have raised these issues in previous writs, all of his prior applications have been dismissed either for non-compliance with the Rules of Appellate Procedure or failure to exhaust administrative remedies. The instant writ application is the first to attack this conviction. Furthermore, counsel's affidavit contains his opinion that Applicant's plea was voluntary, but the affidavit does not address the aforementioned allegations.

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 respond to Applicant's claims that his plea was rendered involuntary because of counsel's alleged threats. The trial court may 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 and conclusions of law in regard to Applicant's claims that his plea was involuntary. Specifically, the trial court shall make findings of fact addressing Applicant's allegation that his lawyer had him sign "blank forms" and threatened that he would work with the District Attorney's office to have Applicant sentenced for the maximum punishment. The trial court shall also make specific findings of fact as to whether counsel made similar threats when Applicant's family was unable to pay the entire fee for counsel's representation. 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 and any court documents associated with Applicant's guilty plea 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: April 6, 2011

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