Ex parte Alexander

Full title: EX PARTE TIMOTHY DEWAYNE ALEXANDER, Applicant

Court: Court of Criminal Appeals of Texas

Date published: Dec 20, 2023

WR-95,096-01 (Tex. Crim. App. Dec. 20, 2023)

Opinion

WR-95,096-01 WR-95,096-02

12-20-2023

EX PARTE TIMOTHY DEWAYNE ALEXANDER, Applicant

Per curiam.

Do not publish

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 21DCR84006-A & 22DCR86438 IN THE 264TH DISTRICT COURT FROM BELL COUNTY

ORDER

Per curiam.

In September 2022, Applicant pleaded guilty to second-degree felony possession of a controlled substance in cause no. 21DCR84006 and was sentenced to eight years' imprisonment. In January 2023, Applicant pleaded guilty in a similar but unrelated case to third-degree felony possession of a controlled substance in cause no. 22DCR86438 and was sentenced to six years' imprisonment. He did not appeal either conviction. Applicant filed these applications for writs of habeas corpus challenging both possession convictions, and the district clerk forwarded them to this Court. See Tex. Code Crim. Proc. art. 11.07.

Applicant contended that trial counsel was ineffective in both possession cases for many reasons-including (among other things) that counsel allowed the charge in cause no. 22DCR86438 to be prosecuted when it had previously been dismissed as part of the plea agreement in cause no. 21DCR84006; failed to adequately investigate the facts of the case; failed to file motion(s) to suppress the evidence discovered during the traffic stops; and coerced his guilty pleas. The 264^thDistrict Court made findings of facts and conclusions of law recommending that this Court dismiss the -01 application because Applicant had improperly challenged his possession convictions in cause nos. 21DCR84006-A and 22DCR86438-A in a single habeas application. This Court agreed and dismissed the application on September 20, 2023. However, the Court recently received Applicant's -02 application challenging cause no. 22DCR86438-A, which Applicant filed immediately after he filed the -01 application and raised identical grounds as the -01 application. Because Applicant correctly filed two separate habeas applications for each possession conviction, this Court now reconsiders on its own motion the dismissal of the -01 application.

Applicant has alleged facts that, if true, might entitle him to relief. Hill v. Lockhart, 474 U.S. 52 (1985). 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 findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant would have insisted on a trial but for counsel's alleged deficient performance. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.

Additionally, the judgment and all other paperwork in the -02 writ record list the convicting court as the 254^th District Court; the findings of fact list the 27^th District Court. However, no transfer order from the 254^th District Court to the 27^th District Court appears in either the -01 and -02 writ records. Consequently, the trial court shall supplement the record with a copy of the transfer order, or submit revised findings of fact in the -02 case listing the correct court number.

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.