EX PARTE MICHAEL ANGELO WHATLEY (other)

OF TEXAS

NO. WR-31,579-03

EX PARTE MICHAEL ANGELO WHATLEY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 2007-0000071M-CR-A IN THE 97TH JUDICIAL DISTRICT COURT

FROM MONTAGUE 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 possession of a firearm by a felon, and was sentenced to ten years imprisonment. He did not appeal his conviction.

Applicant contends, inter alia, that he received ineffective assistance of counsel because his attorney failed to advise him that the State was required to prove Applicant knowingly possessed a firearm in order to obtain a conviction. Applicant contends that he did not know that the firearm in question was in the vehicle that he stole while evading arrest since it was hidden behind a seat. Applicant contends further that as a result, his plea was neither knowingly nor voluntarily entered

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. 1960), the trial court is the appropriate forum for findings of fact.

This case was previously remanded and in the previous order, the trial court was ordered to obtain an affidavit from trial counsel and to supplement the record with copies of the plea documents; including the admonishments, waivers and stipulations signed by Applicant; as well as any written plea agreement. This Court has received the trial court s supplemental record, including the trial court s findings of fact and conclusions of law. However, no affidavit from counsel appears in the supplement. Likewise, the supplement does not contain the requested plea documentation. Therefore, the trial court is again ordered to obtain an affidavit from Applicant s trial counsel by ordering trial counsel to file an affidavit addressing Applicant s claims. In addition, the trial court is again ordered to supplement the habeas record with copies of the plea documents, including the admonishments, waivers, and stipulations signed by Applicant, as well as any written plea agreement. The trial court shall then make findings of fact as to whether counsel advised Applicant of the elements of the offense of possession of a firearm by a felon, and if so, whether there was evidence introduced to support each element of the offense. The trial court shall make findings as to whether counsel advised Applicant to plead guilty in exchange for the maximum sentence for the offense charged, and if so, why. The trial court shall make findings as to whether Applicant was properly advised of the nature of the charges, the applicable punishment range, the rights he was waiving, and the consequences of the plea. The trial court shall make findings 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: September 15, 2010

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