Opinion
NO. WR-86,732-01
05-17-2017
EX PARTE BRODY WAYNE HERR, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 12-10-14246A IN THE 155TH DISTRICT COURT FROM WALLER 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 pleaded guilty to indecency with a child, and was sentenced to ten years' imprisonment. He did not appeal him conviction.
Applicant contends, among other things, that his trial counsel rendered ineffective assistance and that his guilty plea was not knowingly and voluntarily entered. Applicant alleges that trial counsel did nothing other than filing a motion to have Applicant evaluated for competency to stand trial. Applicant alleges that trial counsel failed to investigate Applicant's history of brain damage and psychiatric problems, and failed to explore the possibility of an insanity defense. Applicant alleges that he was told by his caseworker at the State Hospital (where he was confined after being initially found incompetent to stand trial) and a Parole Board member that he would be returned to the State Hospital rather than going to prison if he pleaded guilty. Applicant alleges that the confession he made to police was involuntary and coerced.
This Court has reviewed Applicant's other claims and finds them to be without merit. --------
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 he investigated the facts of the case, including Applicant's medical and psychiatric history. Trial counsel shall state whether he considered having Applicant evaluated for sanity at the time of the offense, or advancing an insanity defense at trial. Trial counsel shall state whether he believed that there was any legal basis upon which to challenge Applicant's confession, and if so, whether he considered filing a motion to suppress. Trial counsel shall state what advice, if any, he gave to Applicant regarding his options for pleading guilty or taking the case to trial. Trial counsel shall also state whether Applicant ever told him that he had made a "deal" with case workers or Parole Board members that would result in his return to the State Hospital rather than serving prison time if he pleaded guilty to this charge. 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 of fact and conclusions of law as to whether Applicant's guilty plea was 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 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: May 17, 2017
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