EX PARTE MICHAEL MAHAN (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-55,344-05

EX PARTE MICHAEL MAHAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. B-09-M012-0-PR-B IN THE 156TH DISTRICT COURT

FROM BEE 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 one count of possession of a prohibited item in a correctional facility and one count of possession of a prohibited substance in a correctional facility. He was sentenced to twenty-five years' imprisonment on each count. He did not appeal his convictions.

Applicant contends, among other things, that his guilty plea was rendered involuntary because he was not protected from hostile witnesses, including prison gangs and prison guards. As a result, he contends that he could not accept the State's plea offer of four years. Applicant has alleged facts that, if true, might entitle him to relief. 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 claim and to state whether the State made a plea offer of four years and whether Applicant wanted to accept this offer, assuming there was such an offer, but could not do so because of threats and intimidation from hostile witnesses. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).

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 first determine whether the State made a plea offer of four years. If the trial court finds that the State made such an offer, it shall then determine why Applicant rejected this offer and whether his decision was affected by hostile witnesses. Finally, the trial court shall determine whether Applicant's guilty 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. The plea papers and the reporter's record of Applicant's guilty plea, if it exists, shall also 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

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