EX PARTE D.J. LANINGHAM (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-72,210-01 
EX PARTE D.J. LANINGHAM, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CM-05-400-1 IN THE 278TH JUDICIAL DISTRICT COURT 
FROM LEON 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 failure to comply with sex offender registration requirements and sentenced to ninety-nine years' imprisonment. The Tenth Court of Appeals affirmed his conviction. Laningham v. State, No. 10-06-00099-CR (Tex. App. - Waco, July 11, 2007, pet. ref'd).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel incorrectly advised Applicant that the State would be bound to prove that Applicant was not in compliance with the sex offender reporting requirements on the specific date alleged in the indictment. Applicant alleges that this incorrect advice caused him to reject a plea offer from the State and pursue a jury trial on the charge.

This Court has remanded to the trial court twice to obtain affidavits from counsel, and the trial court has obtained affidavits and made findings of fact and conclusions of law. Although the affidavit provided by counsel on the second remand states that Applicant was advised of an offer prior to trial and that Applicant refused the offer, the affidavit does not address the question of whether Applicant's decision to refuse the offer was based on advice from counsel that the State would not be able to prove that Applicant was required to register on the specific date alleged in the indictment. Counsel also maintains that the date as alleged in the original indictment would have provided a defense for Applicant, despite the "on or about" language in the indictment. See

Sledge v. State, 953 S.W.2d 253, 258 (Tex. Crim. App. 1997). Although counsel states that Applicant was present when the indictment was amended to allege a different date, the record indicates that Applicant still believed on the date of trial that the State would be required to prove that Applicant was required to register on the date alleged in the original indictment.

The record after remand does not contain any specific information regarding what offers were made by the State prior to trial, and on what dates any such offers were made and rejected. The record does not indicate whether there were any offers still open at the time the indictment was amended to change the date of the offense.

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 hold an evidentiary hearing to address the issues alleged by Applicant and not fully addressed by this Court's prior remands. The trial court 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. At the hearing, the trial prosecutor shall respond as to whether any pre-trial plea offers were made, and if so, what the conditions of those offers were, and whether any offer was open when the indictment was amended to change the offense date.

The trial court shall make findings of fact as to whether Applicant was present at the time the indictment was amended to change the date of the offense. The trial court shall also make findings as to whether any plea offers were made by the State prior to trial, and if so, what the specific dates and conditions of those offers were. If Applicant rejected any pre-trial offers made by the State, the trial court shall make specific findings as to what advice counsel gave to Applicant regarding such plea offers, and whether such advice was based on counsel's belief that the date alleged in the original indictment provided a defense to the charges. The trial court shall make findings as to whether Applicant would have accepted any offer made by the State prior to trial had counsel not advised him that the date in the indictment provided a defense. 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 the hearing, 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: June 16, 2010

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