Opinion
WR-45,397-13 WR-45,397-14 WR-45,397-15
05-22-2024
EX PARTE DONALD EUGENE MIMS, Applicant
Do not publish
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 16-02211-CRF-85-B; 19-00799-CRF-85-B; & 19-00800-CRF-85-B, IN THE 85TH DISTRICT COURT FROM BRAZOS COUNTY.
ORDER
Per curiam.
Applicant pleaded guilty to three offenses of possession with intent to deliver a controlled substance. He was sentenced to forty-five years' imprisonment on each offense, to run concurrently. The Tenth Court of Appeals affirmed his convictions. Mims v. State, Nos. Nos. 10-21-00259-CR, 10-21-00260-CR, & 10-21-00261-CR (Tex. App.-Waco Aug. 24, 2022) (not designated for publication). Applicant filed these applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends, among other things, that (1) appellate counsel was ineffective; (2) trial counsel was ineffective; (3) the State concealed evidence; and (4) his pleas were involuntary because the State concealed evidence. On August 22, 2023, the trial court entered an order designating the ineffective assistance of appellate and trial counsel grounds, as well as ordering both trial and appellate counsel to file affidavits in response within ninety days of the order. Appellate counsel timely complied with the order. However, despite the district clerk sending him two reminder emails, trial counsel has still not filed an affidavit as ordered. A response from trial counsel is needed to accurately address merits of Applicant's ineffective assistance of counsel allegations.
Applicant has alleged facts that, if true, might entitle him to relief. See Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997); Strickland v. Washington, 466 U.S. 668 (1984); Hill v. Lockhart, 474 U.S. 52 (1985). 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 first obtain a response from trial counsel. Then, 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 shall also make findings and conclusions as to whether appellate counsel's performance was deficient and Applicant suffered prejudice. Finally, the trial court shall make findings and conclusions as to whether Applicant's pleas were involuntary, including whether the State concealed any evidence impacting the validity of the search warrant. 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.