Opinion
NO. WR-90,212-02
02-24-2021
EX PARTE GERALD AMOS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1432318-A IN THE 177TH DISTRICT COURT FROM HARRIS COUNTY
Per curiam. ORDER
Applicant was charged with murder, but pleaded guilty to the lesser-included offense of manslaughter, and was sentenced to eighteen years' imprisonment. The trial court certified that he had no right to appeal. 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 that his plea agreement was breached and that his plea was involuntary because he rejected an offer to plead guilty to murder in exchange for a fifteen-year sentence and elected to plead guilty to manslaughter with an eighteen-year sentence because he would be eligible for parole significantly earlier with a manslaughter conviction. Applicant alleges that he was never advised of the possibility that the trial court would enter an affirmative deadly weapon finding, but that the trial court did enter such a finding on the written judgment. Applicant alleges that the affirmative deadly weapon finding negates any advantage that he obtained by rejecting the fifteen-year sentence for murder in favor of the eighteen-year sentence for manslaughter.
Applicant raised these issues in a motion for new trial, which was overruled by operation of law. Apparently, the attorney who filed the motion for new trial on Applicant's behalf requested that a hearing be set on the motion after the deadline for ruling on the motion had passed. The same attorney apparently filed a motion for judgment nunc pro tunc on Applicant's behalf, asking the trial court to remove the affirmative deadly weapon finding from the judgment. It does not appear that the motion for judgment nunc pro tunc was ever ruled on by the trial court.
Applicant has alleged facts that, if true, might entitle him to relief. Brady v. United States, 397 U.S. 742 (1970). 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, the trial prosecutor, and the attorney who filed the motions for new trial and judgment nunc pro tunc 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 as to whether Applicant was offered and declined a plea to the offense of murder in exchange for a fifteen-year sentence. The trial court shall make findings of fact as to whether Applicant was advised of the possibility of an affirmative deadly weapon finding on the manslaughter conviction, whether the State requested such a finding, and whether the trial court orally pronounced the affirmative deadly weapon finding in Applicant's presence. The trial court shall make findings of fact and conclusions of law as to whether Applicant's plea was involuntary or whether his plea agreement was breached. The trial court shall also make findings of fact and conclusions of law as to whether Applicant's motion for judgment nunc pro tunc was ever ruled on, and if not, whether a writ of mandamus was filed in the court of appeals. 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. Filed: February 24, 2021
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