EX PARTE WALTER EDWARD TATE, SR. (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-75,846-01

EX PARTE WALTER EDWARD TATE, SR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 4442-A IN THE 31ST JUDICIAL DISTRICT COURT

FROM WHEELER 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 to money laundering and was sentenced to five years' imprisonment. He did not appeal his conviction.

Applicant contends, inter alia, that his counsel was ineffective for advising him incorrectly regarding whether Applicant would be serving his sentence in this case concurrently with a sentence in Oklahoma. 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. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall order Applicant's trial counsel to submit an affidavit responding 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 first supplement the record with copies of the plea papers in this case, including any admonishments, stipulations, and plea agreement. The trial court shall also supplement the record with a transcript of the plea proceedings. The trial court shall make findings of fact as to whether Applicant's plea in this case was conditioned on his sentence running concurrently with a sentence from an Oklahoma conviction. If so, the trial court shall make findings as to how much time Applicant was to serve in Oklahoma, and as to whether Applicant's sentence in this case is running concurrently with his Oklahoma sentence.

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.

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: June 15, 2011

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