Opinion
NO. WR-91,331-01
07-22-2020
EX PARTE JOSHUA THOMAS MILLER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR17-0065-01 IN THE 43RD DISTRICT COURT FROM PARKER COUNTY
Per curiam. ORDER
Applicant pleaded guilty to aggravated assault with a deadly weapon and was sentenced to twenty-five 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, among other things, that his plea was involuntary because trial counsel provided him with erroneous advice. Specifically, Applicant alleges that trial counsel told him that if he went to trial on the charges, he would not be able to testify on his own behalf because of his criminal history. Applicant also alleges that trial counsel advised him that he would not have to serve one half of his sentence before becoming eligible for parole, because the Legislature was changing the law as to parole eligibility for aggravated offenses. Applicant alleges that trial counsel never asked him about the prior convictions that the State intended to use for enhancement purposes, and failed to investigate the prior conviction from Oklahoma, which, according to Applicant, was committed by someone with a different birth date than Applicant's birth date.
This Court has considered Applicant's other claims and finds them to be without merit. --------
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 claims. 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: July 22, 2020
Do not publish