## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-85,618-01

EX P ARTE DARRICK EDWARD ROSS, App licant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 26619A-1 IN THE 278th DIST RICT COURT

F ROM WALK

ER COUNTY

Per curiam . O R D E R Pursuant to the provisi o n s o f Ar t icle 11.07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y o u ng , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of ag g ravat ed robber y and sentenc ed to life imprisonment. The Tenth Court of Appea ls a ffirme d his c onviction. Ross v. State , No. 10-14-00219- CR (Tex. App.—Waco Apr. 9, 2015) (not d es i g nated for publication). Applicant contends that his plea was involuntary beca use the trial court did not ensure he und er s t o o d t h e p u nishment rang e in this case and that he was competent to enter his open plea of g uilty

. Applicant further alleg es his plea was rende red involuntary due to the ineffe ctive assistance2

of trial counse l. Specifica lly , Applicant alleg es trial counse l was ineff ective f or: A. Coerc ing A

pplicant into pleadingg uilty when the e vidence was insuffic ient; B. Fa iling to perf

orm an independe nt investigation which would have led him to the discovery that Applicant wa s not present at the scene of the c rime; C. Fa iling to i n t er v i ew witnesses, afte r which he would have “discove red my innocenc e”; D. Fa iling to object to pre judicial questions/statements by the prosec utor; E. Fa iling to advise Applicant he could be sentenc ed to life imprisonment as a result of his open plea

of guilty ; F. Errone ously advising Applicant “he could g et me under 15 y ear s” in exchang e for an open ple a of guilty ; and G. Fa iling to speak with defe nse witnesses prior t o ca l l i n g them to testify on Applicant’s be half. In these circ umstances, additional fac ts are neede d. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropr iate forum for finding s of fac t. The trial court may use any means set out in T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). In the appropr iate ca se, the trial c ourt may rely on its personal re collection. Id

. I f t he trial court elects t o hold a hearing , it shall deter mine whether Applicant is indige n t

. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial co u rt shall appoint an attorney to repre sent Applicant at the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make finding s of fac t a nd conclusions of law in r eg ard to Applicant’s cl ai m t h at plea was involuntary

. The trial court shall also make any other finding s of fac t and conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s claim for habea s corpus re lief.3

This application will be held in abeyance until the trial court has resolved the fac t issues. The issues shall be resolv ed wi t h i n 9 0 day s of this order

. A supplemental transcr ipt containing all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hearing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be for war ded to this Court withi n 120 day s of t he date of t his order

. Any extensions of ti me shall be obtained f

rom this Court.

Filed: September

14, 2016 Do not publish