Opinion
NO. WR-86,692-01 NO. WR-86,692-02 NO. WR-86,692-03 NO. WR-86,692-04 NO. WR-86,692-05 NO. WR-86,692-06 NO. WR-86,692-07
05-17-2017
EX PARTE DANIEL SCOTT FLAMONT, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. W15-10175-W(A), W15-34143-W(A), W15-34144-W(A), W15-34145-W(A), W15-34146-W(A), W15-34286-W(A) AND W15-34287-W(A) IN THE 363RD DISTRICT COURT FROM DALLAS 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to six charges of burglary of a habitation and one charge of engaging in organized criminal activity, and was sentenced to seven concurrent ten-year sentences. He did not appeal his convictions.
Applicant contends that his trial counsel rendered ineffective assistance, resulting in an involuntary plea in all seven cases. Applicant alleges that trial counsel failed to communicate with him prior to trial, did not meet with him or answer or return phone calls from him, and did not discuss the charges with him or ask him about any possible defenses. Applicant alleges that trial counsel gave him erroneous advice regarding his parole eligibility, because trial counsel assured him that none of the offenses were "aggravated" or "3g" offenses, when in fact engaging in organized criminal activity is an "aggravated" offense for purposes of parole eligibility under Texas Government Code §508.145(d)(1). Applicant alleges that he had a history of MHMR diagnosis and treatment, but that trial counsel did not inquire into his competency or have him evaluated for competency. Applicant alleges that trial counsel told him that if he did not plead guilty pursuant to the agreement, the trial court would cumulate his sentences upon conviction. Applicant alleges that as a result of the counsel's deficiencies, he believed that he had no option other than pleading guilty pursuant to the agreement, and that his pleas were therefore involuntary.
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 claims of ineffective assistance of counsel. Specifically, trial counsel shall state whether and how often he communicated with Applicant about these cases prior to the entry of the pleas, whether he gave Applicant any advice regarding parole eligibility for these cases, and whether he advised Applicant that none of the offenses was an "aggravated" or "3g" offense. Trial counsel shall state whether he saw any indication that Applicant might have lacked competency, and if so, whether he requested a competency evaluation. Trial counsel shall state whether he advised Applicant about his options for trials or pleas, and whether he specifically advised Applicant to plead guilty pursuant to the plea agreement. 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 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 findings and conclusions as to whether Applicant's guilty pleas were knowingly and voluntarily entered. 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 claims for habeas corpus relief.
These applications 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: May 17, 2017
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