EX PARTE JARED WILLIAM SMITH (other)

OF TEXAS

NO. WR-75,075-01

EX PARTE JARED WILLIAM SMITH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. A-35,525 IN THE 70TH DISTRICT COURT

FROM ECTOR 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 and was placed on deferred adjudication community supervision. Later, he pleaded true to a motion to adjudicate, was adjudicated guilty, and was convicted of attempted sexual assault and sentenced to five years imprisonment. He did not appeal his conviction.

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because he did not advise Applicant of an applicable affirmative defense, the consequences of violating deferred adjudication community supervision, the amount of time Applicant would have to register as a sex offender, and the costs, fees, and fines included in the conviction. Applicant contends that counsel s omissions caused his plea to be involuntary and alleges that he would not have pleaded guilty had he been fully informed about each of these issues. Applicant also alleges that the trial court did not admonish him about to the consequences of a violation of his deferred adjudication community supervision under Article 42.12 5 of the Code of Criminal Procedure and that this rendered his guilty plea involuntary.

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 order Applicant s trial counsel to respond to Applicant s claims 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. Specifically, the court shall make findings as to dates of birth of the Applicant and complainant and whether an affirmative defense was possible under Section 22.011(e) of the Penal Code. If so, the trial court shall make findings as to whether trial counsel discussed the possible affirmative defense with Applicant and, if not, the findings shall detail trial counsel s rationale. The trial court shall also make findings as to whether counsel advised Applicant of the consequences of violating deferred adjudication community supervision, the duration of Applicant s obligation to register as a sex offender, and the fines, costs, and fees associated with this conviction. The trial court shall also make specific findings as to whether Applicant was admonished in accordance with Article 42.12 5 of the Code of Criminal Procedure. Additionally, the trial court shall 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 documents relating to any plea agreements made in this cause number 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: January 12, 2011

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