EX PARTE LARRY SHAWN MYERS (other)

OF TEXAS

NO. WR-74,770-01

EX PARTE LARRY SHAWN MYERS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 23413 IN THE 6TH JUDICIAL DISTRICT COURT

FROM LAMAR 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 a 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 and sentenced to fifteen years imprisonment. The Sixth Court of Appeals dismissed his appeal. Myers v. State, No. 06-10-00079-CR (Tex. App. Texarkana 2010, no pet.).

Applicant contends that he was not competent and did not understand the plea proceedings. He also contends that he told counsel he did not commit this offense and that counsel told him that if he did not plead guilty he would be sentenced to imprisonment for thirty years to life. The State filed an answer, and counsel and an appointed investigator filed affidavits in response to Applicant s claims. The trial court, however, made no findings of fact and conclusions of law.

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 may be 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 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether the performance of counsel was deficient and, if so, whether his deficient performance prejudiced Applicant. The trial court shall also make findings and conclusions as to whether Applicant was competent to plead guilty. 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 claims 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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