Opinion
NO. WR-86,793-01
06-07-2017
EX PARTE BOBBY JOE BOWEN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 48005-C-1 IN THE 89TH DISTRICT COURT FROM WICHITA COUNTY
Per curiam. KEASLER, J., not participating. ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was charged with aggravated robbery, with a prior juvenile adjudication alleged for enhancement purposes. He pleaded guilty and was sentenced to thirty years' imprisonment. He did not appeal his conviction.
Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to meet with him prior to the date of trial, failed to investigate or interview potential witnesses, failed to inform Applicant that his juvenile adjudication would be used against him, failed to prepare any defense, and told Applicant that he would receive a 99-year sentence if he testified on his own behalf at trial or did not accept the thirty-year plea offer.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these circumstances, additional facts are needed. As we held in Exparte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order trial counsel to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 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 wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
The trial court shall first supplement the habeas record with copies of all of the plea papers in this case, including any written plea agreement, admonishments, stipulations and judicial confession, and any evidence that was introduced to support the plea. The trial court shall make findings of fact as to whether Applicant pleaded "true" to the enhancement paragraph, and whether the enhancement paragraph was found to be "true." The trial court shall make findings of fact and conclusions of law as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be forwarded to this Court within 120 days of the date of this order. Any extensions of time must be requested by the trial court and shall be obtained from this Court. Filed: June 7, 2017
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