EX PARTE SHANE PATRICK FOUNTAIN (other)

OF TEXAS

NO. WR-74,800-01

EX PARTE SHANE PATRICK FOUNTAIN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 13476-A IN THE 344TH JUDICIAL DISTRICT COURT

FROM CHAMBERS 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 entered an open plea of guilty to aggravated sexual assault of a child, and was entenced to twenty years imprisonment. He did not appeal his conviction.

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel misled Applicant into believing that he was pleading guilty in exchange for a ten-year probated sentence, when in fact he was entering an open plea to an offense that was not eligible for straight probation. Applicant also alleges that counsel failed to file any pre-trial motions, failed to investigate or interview the State s witnesses, failed to move that Applicant be examined for sanity and competency, failed to secure Applicant s psychiatric records, failed to present evidence of Applicant s history of mental health issues in mitigation of punishment, and allowed the introduction of extraneous offense evidence that was erroneous.

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 provide Applicant s trial counsel with the opportunity to respond to Applicant s claim of ineffective assistance of counsel. 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 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 findings as to whether Applicant was properly admonished as to the nature and consequences of his plea, and as to whether he was advised of his right to appeal, or whether he expressly waived his right to appeal. If Applicant did expressly waive his right to appeal, the trial court shall supplement the record with a copy of the waiver. If Applicant did not expressly waive his right to appeal, the trial court shall make findings as to whether Applicant indicated any desire to appeal. 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: November 3, 2010

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