Opinion
NO. WR-44,431-08
07-22-2020
EX PARTE BRIAN KEITH MELTON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. WRIT10946 IN THE 196TH DISTRICT COURT FROM HUNT COUNTY Per curiam. ORDER
Applicant was convicted of violation of protective order with two prior convictions and sentenced to ten years' imprisonment. 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, among other things, that his plea was involuntary because a part of the plea agreement was for him to receive 270 days of jail time credit, and he is not receiving that time. He alleges that he is not eligible to receive all of the time because if he did, the start date for his sentence would be before the offense date. He also alleges that he does not have two prior convictions and counsel was ineffective for not challenging this as a third degree felony when it should have been a misdemeanor offense. Applicant has alleged facts that, if true, might entitle him to relief. Brady v. United States, 397 U.S. 742 (1970); 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 the trial court has appointed counsel for Applicant. 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 trial court shall make findings of fact and conclusions of law as to whether Applicant's plea was involuntary or trial counsel was ineffective. 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: July 22, 2020
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