EX PARTE PAM DENISE STARKS (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-75,602-01

EX PARTE PAM DENISE STARKS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W91-44945-J(A) IN THE CRIMINAL DISTRICT

COURT NO. 3 FROM DALLAS 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 Burglary of a Habitation and sentenced to 40 years' imprisonment. Her conviction, as reformed, was affirmed in an unpublished opinion. Starks v State, Slip Op. No. 05-09-00231-CR (Tex.App.-Dallas, del. March 20, 1995).

Applicant contends that her trial counsel rendered ineffective assistance. She complains that she refused a plea offer of 25 years on the advice of counsel even though this plea offer was the minimum for her offense as prosecuted. Applicant claims counsel told her she had nothing to lose, did not warn her that the punishment could go above the 25-year offer, and said she would not get more in an open-plea than the 25-year offer. Had counsel explained that 25 years was the minimum sentence for the offense as prosecuted and that the actual sentence in an open plea could be much higher, Applicant indicates she would have accepted the plea offer rather than plead open to the court. There are no admonishments in the record, and the docket sheet only states that Applicant was warned.

Applicant has alleged facts that, if true, might entitle her 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 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, including findings concerning the affirmative defense of laches the State has raised. See Ex parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999).

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: May 11, 2011

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