Opinion
NO. WR-92,074-01
12-16-2020
EX PARTE JAMES MARCUS MILES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1509077-A IN THE 179TH DISTRICT COURT FROM HARRIS COUNTY
Per curiam. ORDER
Applicant pleaded guilty to indecency with a child and was sentenced to ten years' imprisonment. The First Court of Appeals dismissed his appeal for lack of jurisdiction. Miles v. State, No. 01-19-00047-CR (Tex. App. — Houston [1st Dist.], July 23, 2019). 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 his plea was involuntary because trial counsel failed to properly advise him of the legal significance of his open plea, promised that he would receive probation, and failed to properly prepare Applicant for testifying. Applicant also claims counsel failed to investigate mitigating evidence and to investigate, test, and advice Applicant of the State's DNA evidence. 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). 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. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
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: December 16, 2020
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