EX PARTE EDDIE DALE UNDERWOOD (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-47,385-06

EX PARTE EDDIE DALE UNDERWOOD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 006880-B IN THE 259th DISTRICT COURT

FROM JONES 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 building and sentenced to fifteen years' imprisonment. He did not appeal his conviction.

Applicant contends that his plea of true at his revocation hearing was involuntary because counsel rendered ineffective assistance and because the trial court ratified a sentencing agreement between the parties that was impossible to fulfill. Specifically, the Applicant alleges that the trial court initially sentenced him to fifteen years' imprisonment in a Substance Abuse Felony Punishment Facility pursuant to plea agreement with the State. (1)

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 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 obtain a response from counsel.

The trial court shall make findings of fact and conclusions of law in regard to Applicant's claim that his plea was involuntary. 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: August 24, 2011

Do not publish

1. A judgment nunc pro tunc was subsequently entered which changed Applicant's sentence to fifteen years' in TDCJ-ID. The written record also appears to reflect that this nunc pro tunc judgment was not entered to correct a clerical error in the original judgment.