Opinion
NO. WR-86,544-01
09-13-2017
EX PARTE JERRY WAYNE HOGG, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 14-7444-A IN THE 106th DISTRICT COURT FROM DAWSON 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 driving while intoxicated and sentenced to ten years' imprisonment. The Eleventh Court of Appeals dismissed the appeal concerning his conviction. Hogg v. State, No. 11-16-00144-CR (Tex. App.—Eastland June 16, 2016) (not designated for publication).
Applicant contends that his trial counsel rendered ineffective assistance because, among other things, she failed to investigate, erred in advising Applicant to turn down the State's plea offer, and, through her actions and inactions, coerced Applicant into entering into a plea of guilty.
We remanded this application to the trial court in order to resolve the issues raised by Applicant in this case. In response, the trial court obtained an affidavit from counsel and entered findings of fact and conclusions of law without making a recommendation to this Court. The trial court stated, based upon its review of counsel's affidavit, that it "cannot make a conclusion as to whether the performance of Applicant's trial counsel was deficient." We agree with the trial court's statement and remand this matter for a live evidentiary hearing.
Counsel states in her affidavit, in pertinent part [emphasis added]:
. . . Mr. Hogg retained me to represent him in Cause No. 14-7444 where Mr. Hogg was charged with felony DWI with four prior convictions for the same offense. At this time, the office of the District Attorney was short on manpower so Mr. Mike Munk [the District Attorney] solicited Mr. Steve Payson, the Dawson County Attorney, to assist in the resolution of certain cases, Mr. Hogg's being one of them. I met with Mr. Payson on three occasions and we finally agreed on a plea offer of guilty in the pending case in exchange for a suspended sentence to include whatever terms and conditions of probation and the felony probation office would fashion. This was because of Mr. Hogg's responsibility for his teenage daughter for whom he was sole managing conservator, his continued sobriety with the support of his family since his most recent arrest, and his gainful employment. The felony probation officer and I discussed the case as well and she agreed to accept this agreement and monitor Mr. Hogg. Mr. Hogg was very aware of these negotiations and very pleased with the outcome.
It was agreed that on February 18, 2015, Mr. Hogg would enter his plea of guilty in exchange for a term of probation. Once in court on this day, Mr. Payson requested the necessary paperwork from the District Attorney's office. Mr. Munk heard this request and told Mr. Payson his plea offer was not acceptable and this office would not honor the agreement between Mr. Payson and me. . . .
However, counsel's version of events is directly contradicted by correspondence included in the record before this Court. This correspondence, which consists of a letter from the district attorney to counsel, states, in pertinent part [emphasis added]:
As far as I know there was never a one year imprisonment offer that I am aware of in this case. To my knowledge Steve offered probation with SAFPF as a condition. As stated in my earlier letter, since you and Steve were unable to resolve this case I will be trying it.
In retrospect, I think your client should have seriously considered Steve's last offer. Probation was SAFPF for a fifth (5th) DWI, after he has been to the pen before for the same offense, is quite generous. I think there are numerous people in the pen that would offer that advice. His child was alive at the time he committed this offense. That fact did not act to deter his action then. The fact that he has custody of her now does not mitigate his debt to society, through intense in-patient rehabilitation, or pen time. But I digress. We will be announcing ready for trial at the next available trial docket.
Counsel states she accepted a plea agreement on behalf of Applicant that included probation with conditions only to have it undone by the district attorney, Applicant alleges counsel improperly advised him to reject such a plea offer, and the prosecutor's correspondence indicates such an offer was turned down. The record before us is filled with contradictions and the prosecutor is correct that the plea offer was very advantageous to the Applicant.
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 hold a live evidentiary hearing in order to resolve the issues raised in this case.
It appears from the record that Applicant is currently represented by counsel. However, if this is no longer true, the trial court 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 counsel made a material misrepresentation in her affidavit regarding whether a plea offer was accepted in this case only to be undone by the district attorney. 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: September 13, 2017
Do not publish