Opinion
WR-94,855-02
10-11-2023
EX PARTE REGINALD LEE CLARK, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 12184-A-2 IN THE 77TH DISTRICT COURT FROM LIMESTONE COUNTY
ORDER
PER CURIAM
Applicant was convicted of theft of property valuing $200,000 or more and sentenced to twenty-five years' imprisonment. He did not appeal his conviction. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends, among other things, that trial counsel was ineffective because counsel failed to: (1) convey and explain to him the State's plea offer ten years in state prison, probated for ten years; (2) timely file a notice of appeal, despite expressing to counsel his desire to appeal; and (3) challenge the State's banking records offered and admitted at trial by objecting and/or offering the complete banking records showing all of the transactions between the parties. The trial court made findings of fact and conclusions of law recommending that relief be denied because Applicant's instant application is a subsequent writ barred by Texas Code of Criminal Procedure Article 11.07 § 4. That analysis is incorrect. Applicant's previous writ application only raised claims related to parole, so it did not "challenge" the instant theft conviction and therefore cause the Section 4 bar to apply. See Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998).
Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013); Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988); Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003); Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant's claims. In developing the record, the trial court may use any means set out in Article 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 wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make specific findings as to whether the doctrine of laches bars consideration of the instant application. If laches does not, the trial court shall make findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant was prejudiced. The trial court shall make specific findings as to (1) whether the State offered Applicant a ten-year probated plea deal; (2) if so, whether trial counsel not only conveyed but fully explained that offer to Applicant; and (3) if counsel did not, whether (i) Applicant would have accepted the offer if counsel had not given ineffective assistance; (ii) the prosecution would not have withdrawn the offer; and (iii) the trial court would not have refused to accept the plea bargain. The trial court shall also make specific findings as to whether Applicant was denied his right to an appeal because trial counsel failed to timely file a notice of appeal, including whether trial counsel ascertained if Applicant wished to appeal. Finally, the trial court shall make specific findings as to counsel's alleged deficiencies regarding the banking records, including whether the banking records offered by the State were properly admitted into the record and whether said records were incomplete. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.