Opinion
NO. WR-86,741-01
05-17-2017
EX PARTE JERON ROBERSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR22739-A IN THE 35th DISTRICT COURT FROM BROWN COUNTY
Per curiam. ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of indecency with a child and sentenced to fifteen years' imprisonment. He did not appeal his conviction.
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel advised him to plead guilty instead of raising an available affirmative defense. Applicant further alleges his plea in this case was involuntarily entered due to counsel's erroneous advice. Specifically, Applicant alleges there was an affirmative defense to prosecution under TEX. PENAL CODE § 21.11(b), because he was not more than three years older than the victim and of the opposite sex, he did not use duress, force or a threat against the victim at the time of the offense, and, at the time of the offense:
- He was not required, under Chapter 62 of the Code of Criminal Procedure, to register for life as a sex offender; or
- He was not person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these circumstances, additional facts are needed. As we held in Exparte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order trial counsel to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 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 wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
The trial court shall make findings of fact and conclusions of law as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be forwarded to this Court within 120 days of the date of this order. Any extensions of time must be requested by the trial court and shall be obtained from this Court. Filed: May 17, 2017
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