Opinion
NO. WR-91,704-01
11-04-2020
EX PARTE JIMMIE KYLE ANDERSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 4360 IN THE 46TH DISTRICT COURT FROM HARDEMAN COUNTY
Per curiam. ORDER
Applicant was convicted of one count of aggravated sexual assault of a child and sentenced to ninety-nine years' imprisonment, and three counts of indecency with a child by sexual contact, and sentenced to fifteen years' imprisonment on the three counts, all to be served consecutively. The Seventh Court of Appeals affirmed his conviction. Anderson v. State, Nos. 07-17-00421-CR, 07-17-00428-CR, 07-17-00429-CR, 07-17-00430 (Tex. App.—Amarillo, Mar. 22, 2019). 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 trial counsels were ineffective because they failed to properly investigate the charges and range of possible punishment prior to erroneously advising Applicant to plead open to the court, and failed to preserve error by objecting to the cruel and unusual sentence that occurred when his sentences were stacked. Applicant has alleged facts that, if true, might entitle him to relief. 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 claim. 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 investigated the charges and punishment ranges, including the possibility of stacking the sentences, and informed Applicant of the pertinent information prior to advising Applicant to plead guilty without a plea bargain. The trial court shall also make findings as to whether Applicant's decision to plead guilty was voluntarily and knowingly entered. 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 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: November 4, 2020 Do not publish