Opinion
NO. WR-71,468-02
01-09-2013
EX PARTE NEHEMIAH J. D. JACKSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W05-60136-K(B) IN THE CRIMINAL DISTRICT COURT #4
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 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 possession with intent to deliver a controlled substance and sentenced to thirty years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Jackson v. State, No. 05-06-01127-CR (Tex. App. - Dallas, June 26, 2008).
Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to advise Applicant of the possibility of an affirmative deadly weapon finding if Applicant elected to go to trial on the charges. Applicant alleges that had he been aware of the possibility of an affirmative deadly weapon finding, and of the parole consequences of such a finding, he would not have gone to trial on the charges, but would have accepted a pre-trial plea offer.
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. 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 as to whether the State provided the defense with notice of its intention to seek an affirmative deadly weapon finding, and if so, whether counsel notified Applicant of the possibility of such a finding, and of the consequences of such a finding. The trial court shall make findings of fact as to whether the State made any pre-trial plea offers, and if so, whether the offers included an affirmative deadly weapon finding or not. 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 shall be obtained from this Court. Do not publish