Opinion
NO. WR-87,504-02
01-10-2018
EX PARTE MICHAEL DARREN BOYDSTON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F48751 A IN THE 18TH DISTRICT COURT FROM JOHNSON COUNTY
Per cur i am. 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 convicted of one count of indecency with a child by contact, and one count of sexual assault of a child and sentenced to consecutive life sentences for each count. The Tenth Court of Appeals affirmed his conviction. Boydston v. State, No. 10-14-00310-CR (Tex. App. — Waco, Aug. 6, 2015) (not designated for publication).
Applicant contends, among other things, that his trial counsel rendered ineffective assistance for various reasons. Applicant's trial counsel has submitted an affidavit responding to most of Applicant's claims, but the affidavit is insufficient to address one claim. Specifically, Applicant alleges that trial counsel erroneously advised him prior to trial that an extraneous act of sexual abuse against another child would not be admissible at trial in this case, causing Applicant to forgo a favorable plea agreement.
This Court has considered Applicant's other grounds and finds them to be without merit.
At trial, a great deal of the State's evidence and witness testimony pertained to an extraneous act against a different child. In his affidavit, trial counsel addresses Applicant's claim as if it were an issue of notice, stating that the notice provided by the State was sufficient under the law, and that the evidence was not a surprise to the defense. However, in his affidavit trial counsel also states that he negotiated a two-year plea offer prior to trial. Apparently, Applicant rejected this offer and elected to go to trial on the charges, resulting in consecutive life sentences. Trial counsel's affidavit does not provide any details as to the circumstances of Applicant's decision to forgo the two-year plea offer, or as to any advice that trial counsel gave Applicant with regard to accepting the plea offer or taking the case to trial.
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 Ex parte 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. Specifically, trial counsel shall state whether he ever advised Applicant that he should not be concerned about the extraneous sexual abuse allegations, or that they would not be admissible at trial in this case. Trial counsel shall state whether he communicated a two-year plea offer to Applicant, and if so, what advice if any trial counsel gave to Applicant regarding accepting the plea offer versus going to trial on the charges. Trial counsel shall state when the offer was made and when it was rejected, and shall state whether the issue of the admissibility of the extraneous offense evidence had any bearing on Applicant's decision to reject the plea offer and go to trial on the charges. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
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 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: January 10, 2018
Do not publish