Opinion
09-22-00405-CR
02-14-2024
EX PARTE ROZELL ANDRE RANDALL
On Appeal from the County Court at Law Orange County, Texas Trial Cause No. Cl 13268
Before Golemon, C.J., Horton and Wright, JJ.
ORDER
PER CURIAM
In two points of error, Appellant Rozell Andre Randall ("Randall") challenges the trial court's denial of his application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.072. Specifically, Randall contends that he received "constitutionally ineffective assistance of trial counsel at his plea hearing," and that the trial court "erred in becoming a fact witness at the hearing [on his habeas petition]."
Since the trial court neither dismissed Randall's case as frivolous nor made findings of fact and conclusions of law, we do not consider the merits, but instead abate and remand the case to the trial court to clarify its order denying Randall's application for writ of habeas corpus in compliance with the Texas Code of Criminal Procedure. See id. art. 11.072, § (7)(a).
I. Background
Randall, a commercial truck driver, pleaded "guilty" to three counts of driving while intoxicated (second offense), a Class A misdemeanor. See Tex. Penal Code Ann. § 49.04. He was sentenced to serve one year in the Orange County jail, with the sentence suspended for twenty-four months while he was placed on community supervision.
Upon learning that his guilty plea and consequent conviction for driving while intoxicated would result in the revocation of his commercial driver's license, Randall petitioned the trial court for a writ of habeas corpus pursuant to Texas Code of Criminal Procedure article 11.072. See Tex. Code Crim. Proc. Ann. art. 11.072. In his petition, Randall argued that the attorney representing him during his plea negotiations and hearing was constitutionally ineffective because the attorney did not fully advise him of the consequences of his plea, and because the attorney failed to investigate Randall's mental health issues that purportedly affected the voluntariness of his plea. According to Randall, these shortcomings in counsel's performance rendered his plea involuntary. Randall's petition also requested that the habeas record be expanded to include the transcript of his plea hearing.
At the hearing on Randall's habeas petition, the trial court relied on its own review of the record of the plea hearing. Based on this review, the trial court discredited Randall's description of the plea hearing and denied his application. Specifically, the trial court noted that contrary to Randall's testimony, his attorney did not "answer for him" during his plea hearing. The trial court further observed that at the plea hearing, she asked him whether he had "go [ne] over the paperwork with his attorney before he signed everything, and he said yes[,]" although Randall denied that the trial court had "ask[ed] all those questions." The trial court's "ORDER" specifically provided that:
On August 1, 2022, came on for hearing Petitioner's application for postconviction writ of habeas corpus under Tex. Code Crim. Proc. art. 11.072. After hearing evidence and arguments thereon, the Court determines that said application should be, and is, denied.
This appeal followed.
II. Analysis
Texas Code of Criminal Procedure article 11.072, § 7(a) specifically provides that:
If the court determines from the face of the application or documents attached to the application that the applicant is manifestly entitled to no relief, the court shall enter a written order denying the application as frivolous. In any other case, the court shall enter a written order including findings of fact and conclusions of law. The court may require the prevailing party to submit a proposed order.Tex. Code Crim. Proc. Ann. art. 11.072, § 7(a).
"Article 11.072 of the Texas Code of Criminal Procedure "establishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision.'" Ex parte Jones, 367 S.W.3d 696, 696 (Tex. App.-Texarkana 2012, no pet.) (quoting Tex. Code Crim. Proc. Ann. art. 11.072, § 1) (remanding for compliance with the Code of Criminal Procedure). In Jones, the trial court did not set forth in its order that the appellant is "manifestly entitled to no relief," and therefore did not deny his application as "frivolous," nor did the trial court include in its order findings of fact and conclusions of law, where either scenario is required by Texas Code Criminal Procedure article 11.072, subsection 7(a). See id. at 697; see also Ex parte Griffin, No. 03-21-00198-CR, 2023 WL 2837487, at *3 (Tex. App.-Austin Apr. 7, 2023, no pet.) (order &mem op., not designated for publication).
As indicated above, the trial court in its "ORDER" neither denied Randall's habeas application as frivolous nor entered written findings of fact and conclusions of law. See Tex. Code Crim. Proc. Ann. art. 11.072 § 7(a). Even though the section quoted above provides that "[t]he court may require the prevailing party to submit a proposed order[,]" this does not relieve the trial court from strictly complying with the section. Ex parte Jones, 397 S.W.3d at 696; see also Ex parte Griffin, 2023 WL 2837487, at *3.
Here, as in Jones, the trial court did not deny the habeas application as frivolous, nor did the trial court make the required findings of fact and conclusions of law. See Tex. Code Crim. Proc. Ann. art. 11.072 § 7(a); see also Ex parte Jones, 367 S.W.3d at 697. "When a trial court enters an unclear order or one that neither finds the application frivolous nor includes findings of fact and conclusions of law, we must abate the appeal and remand the case to the trial court for clarification." Ex parte Griffin, 2023 WL 2837487, at *2; see also Ex parte Sanchez, 667 S.W.3d 324, 328 (Tex. App.-Houston [1st Dist] 2022, pet. ref d) (en banc) (citing Tex. Code Crim. Proc. Ann. art. 11.072, § 7(a)) ("Because the habeas court's order did not deny Sanchez's habeas application as frivolous and the clerk's record did not include the required findings of fact and conclusions of law, this Court abated the appeal.").
The trial court shall issue an order complying with Texas Code of Criminal Procedure article 11.072, subsection 7(a) necessary for the disposition of this appeal. See Tex.R.App.P. 44.4 (requiring court of appeals to direct the trial court to correct error when its action or failure or refusal to act prevents the proper presentation to the court of appeals); see also Tex. Code Crim. Proc. Ann. art. 11.072, § 7(a). The court shall also file a supplemental clerk's record containing the order no later than March 5,2024. See Tex.R.App.P. 44.4. Further, the parties are ordered to file with this Court supplemental appellate briefing regarding the propriety of the trial court's order. See Tex.R.App.P. 38.7 (authorizing appellate court to request supplemental briefing "whenever justice requires[]" and "on whatever reasonable terms the court may prescribe[]"). The supplemental appellant's brief will be due on or before twenty days after the supplemental clerk's record is filed, and the supplemental appellee's brief will be due on or before the twentieth day after the supplemental appellant's brief has been filed. See Ex parte Griffin, 2023 WL 2837487, at *2 (abating and remanding for the trial court to clarify its order in compliance with subsection 7(a) of article 11.072).
III. Conclusion
Since the trial court failed to either deny the habeas application as frivolous, or enter written findings of fact and conclusions of law, we cannot determine the basis of the denial, so we abate without reaching the merits of Randall's application, and we remand the case to the trial court for compliance with the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.072, § 7(a); see also Tex.R.App.P. 44.4.