Opinion
NO. WR-91,899-01
11-11-2020
EX PARTE JOHN JEFFREY MALONE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 10-CR-15762-A IN THE 107TH DISTRICT COURT FROM CAMERON COUNTY Per curiam. ORDER
Applicant pleaded no contest to theft and, after a period of deferred adjudication, was sentenced to ten years' imprisonment. He did not appeal his conviction. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.
Applicant contends that the trial court lacked jurisdiction to adjudicate his guilty because it had signed an order dismissing the charge on October 13, 2016 while he was on deferred adjudication supervision. He also alleges that counsel was ineffective for allowing him to plead no contest and accept a sentence on a case which had been dismissed years earlier. Applicant has alleged facts that, if true, might entitle him to relief. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX. CODE CRIM. PROC. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant's claim. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX. CODE CRIM. PROC. art. 26.04.
The record is missing the exhibits listed from Applicant's memorandum. Under Article 11.07 of the Texas Code of Criminal Procedure, a district clerk is required to forward to this Court, among other things, "the application, any answers filed, any motions filed, transcripts of all depositions and hearings, any affidavits, and any other matters such as official records used by the court in resolving issues of fact." Id. at § 3(d); see also TEX. R. APP. P. 73.4(b)(4). The record forwarded to this Court appears, however, to be incomplete. The trial court docket sheet lists a State's motion to dismiss from 2016 as well as a court's order to dismiss from 2016. The record is also missing the exhibits attached to Applicant's memorandum of law. The district clerk shall either forward those documents to this Court or certify in writing that they are not part of the record. The district clerk shall comply with this order within thirty days from the date of this order.
The trial court shall make findings as to whether the court dismissed the charges against Applicant in 2016 and if so, how it proceeded to adjudicate guilt against Applicant in 2019. The trial court shall make findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant would have insisted on a trial but for counsel's alleged deficient performance. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX. R. APP. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. Filed: November 11, 2020
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