Opinion
NO. WR-86,111-01
01-25-2017
EX PARTE MICHAEL ALLEN CHAMBERLAIN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 5332A IN THE 100TH DISTRICT COURT FROM CARSON COUNTY
Per curiam. 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 indecency with a child by sexual contact and sentenced to twenty years' imprisonment. The Seventh Court of Appeals affirmed his conviction. Chamberlain v. State, No. 07-14-00011-CR (Tex. App.—Amarillo Apr. 16, 2015) (not designated for publication).
Applicant states that he was led to believe he had a plea agreement for deferred adjudication on a third-degree indecency by exposure charge, punishable by a maximum of ten years in prison, but he was convicted upon adjudication with second-degree indecency by contact and received the maximum sentence of twenty years. He claims, inter alia, that the plea agreement was breached, that his plea was involuntary, that he was denied due process, and that his trial and appellate counsel provided ineffective assistance. There are no affidavits from counsel or findings in the habeas record forwarded to this Court.
On direct appeal, Applicant complained that no evidence was offered during sentencing to substantiate the finding of guilt for the second degree offense of indecency with a child by sexual contact. According to Applicant, he did not testify, and the judicial confession he did sign concerned indecency by exposure, but it was not signed by the trial judge and filed with the clerk until five days after the plea. In affirming the conviction, the appellate court noted as follows:
Based on the totality of the record before us, we begin our analysis with a finding that, notwithstanding the inconsistencies and deficiencies that appear of record, both the trial court and Appellant contemplated a plea to a lesser-included, second degree felony offense of indecency with a child by sexual contact, and the trial court orally pronounced guilt as to that offense (albeit, not specifying the offense to be indecency with a child by sexual contact). While we see issues with both the stipulation of evidence and the judicial confession, we find the overall record supports the trial court's judgment. Because we ultimately conclude the evidence supports the judgment entered, we will affirm.Chamberlain v. State, No. 07-14-00011-CR at *6.
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Despite an imprecise and somewhat misleading plea agreement, a stipulation that describes another offense, a convoluted plea hearing, the failure to offer the written confession into evidence or conclusively establish that the trial court considered it, a probation order that describes the wrong statutory basis of conviction and defers an adjudication of guilt as to an offense not generally eligible for deferred adjudication, and a judgment that repeats the wrong penal code section found in the order of deferred adjudication, we hereby reform the judgment to reflect the offense of conviction to be indecency with a child by sexual contact and the operable statute to be Penal Code section 21.11(a)(1). As reformed, we affirm the judgment of conviction.
Applicant is claiming that he pled guilty based on his understanding of this "imprecise and somewhat misleading" plea agreement. Applicant has alleged facts that, if true, might entitle him to relief. 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 and appellate counsel to address the claims Applicant raises in his habeas application, and it shall resolve the disputed factual issues. 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 in regard to Applicant's claims. 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 25, 2017
Do not publish