EX PARTE THEODORE EDWARD WHITTLEY (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-75,911-01

EX PARTE THEODORE EDWARD WHITTLEY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 4005 IN THE 100TH DISTRICT COURT

FROM CARSON 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 possession of a controlled substance with the intent to manufacture methamphetamine and was sentenced to seven years' imprisonment. The Seventh Court of Appeals affirmed his conviction. Whittley v. State, No. 07-10-00081-CR (Tex. App.-Amarillo Aug. 25, 2010, no pet.).

Applicant contends that: (1) the State failed to disclose that a prosecution witness, Holly Mesneak, agreed to testify against Applicant in exchange for probation; (2) trial counsel failed to subpoena Leonard Kane; and (3) appellate counsel failed to timely advise Applicant of his right to file a pro se petition for discretionary review.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Giglio v. United States, 405 U.S. 150 (1972). 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 trial and appellate counsel and the State to respond to Applicant's claims. 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 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: (1) the State reached an agreement for probation with Mesneak before Applicant's trial and violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose this agreement; (2) trial counsel rendered ineffective assistance by failing to subpoena Kane; and (3) appellate counsel rendered ineffective assistance by failing to timely advise Applicant of his right to file a pro se petition for discretionary review. 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: June 22, 2011

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