Opinion
WR-94,101-01
03-01-2023
EX PARTE LARRY DAN RISHER, Applicant
Do not publish
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 1107464-A IN THE 337TH DISTRICT COURT FROM HARRIS COUNTY
ORDER
PER CURIAM
Applicant was convicted of possession of cocaine and sentenced to 12 years' imprisonment. Applicant filed this application for 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.
This application was file-stamped in Harris County on April 27, 2009. An order designating issues was signed by the trial judge on May 15, 2009. The district clerk sent a copy of the ODI to defense counsel on May 18, 2009. This application was not received by this Court until Aug. 29, 2022. There is no indication in the record of any action by the trial court after the ODI was signed. Nor is there any indication as to why this application was pending in Harris County for so long without any action by the clerk or the trial court.
Applicant contends that his plea was involuntary because trial counsel was ineffective. He alleges, among other things, that counsel was ineffective for informing him that he would be facing a sentencing range of 25 years to 99 years or life if he went to trial. 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). As a preliminary matter, the trial court shall make findings of fact as to why no action was taken by the trial court or the clerk between the entry of the order designating issues and the forwarding of the application to this Court. The trial court shall obtain a response from Applicant as to whether Applicant still wants to pursue this application, and shall include that response in the supplemental record. If the trial court is unable to obtain such a response from Applicant, the trial court shall detail the efforts that were made to obtain a response from Applicant. The trial court shall then return the application to this Court.
If Applicant indicates that he does want to pursue this application, the trial court shall order trial counsel to respond to Applicant's claim of involuntary plea due to ineffective assistance of counsel. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d), including the court's personal recollection. 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 Applicant's plea was involuntary. 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.