## 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-88,695-02

EX P ARTE RODNEY BRYANT CAR NES, App licant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. B16636-2 IN THE 198T H DISTRICT COURT

F ROM K

ERR 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 oung , 418 S.W .2d 824, 826 (Te x . Crim. App. 1967). Applicant pleaded guilty to evading arr est with a motor vehicle, and was sentenc ed to fifty y ea rs ’ imprisonment. He did not appea l his conviction. Applicant contends that h is trial counsel rende red ineffe ctive assistance beca use trial counsel failed to communicate a fif t ee n-y ear plea offer to him, and that his g uilty plea was not knowing ly and voluntarily

enter ed because he was not awa re of this first plea of

fer . Acc ording to Applicant, the fiftee n-y ear offe r was made by the State bef o re h e wa s ar rested for this offe nse. Applicant2

alleg es that his orig inal appointed counsel communicated a later 25-y ear offe r to him, which he reje cted. Howeve r, Applicant alleg es that he would have acc epted a fiftee n-y ear offe r had he known about such an offe r. Applicant later reta ined a differ ent attorney , who neg otiated the fifty -y ear plea offe r that Applicant eventua lly acc epted. Applicant also alleg es that his reta ined attorney did not advise him of the pr evious fiftee n-y ear offe r or try

to ge t such an off

er r einstated. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); Ex parte Patterson , 993 S.W .2d 114, 115 (Tex. Crim. App. 1999). I n 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 shall order the trial prosec utor to submit an aff idavit de tailing all plea offe rs that wer e extended in this case, the dates when a ny such off ers we re ex tended a

nd withdrawn, a

nd Applicant’s r esponse to any such offe rs. The trial court shall order both Applicant’s appointed and reta ined trial attorney s to respond to Applicant’s claims of i neff ectiv e assist ance of counsel. Specifica lly , both attorney s shall detail all plea offe rs t h at were made during their respe ctive repr esenta tions, the dates upon which such offe rs wer e made and/or withdrawn, whether Applicant was advised of any such offe rs, and whethe r h e declined any such offe rs in writing

. 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)

. I f t he trial cou rt elec ts to hold a hearing , it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial co u rt s hall appoint an attorney to repre sent Applicant a t the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court s h al l m ake finding s of fac t and conclusions of law as to whether the perf ormanc e of Applic a

n t’ s tr ia l a ttorney s was defic ient and, if so, whether either attorney ’s defic ient3

perf ormanc e prejudiced Applicant. The trial court shall m ak e fi n d ings of fac t and conclusions of law as to whether Applicant’s alleg ation that he would have acc epted a fiftee n-y ear offe r had he been made awar e of such an offe r i s cre dible, and as t o whether Applicant’s eventual decision to plead g uilty in exchang e for a fifty -y ear sentenc e was knowing ly and voluntarily made. The t ri al court shall also make any other finding s of fac t and conclusions of law t h at it deems rele vant and appropr iate to the disposition of Applicant’s cla im for habe as cor pus relief

. This application will be held in abey ance until the trial court has resolved the fac t issues. The i s s u es s h all be resolved within 90 day s of this order

. A supplemental transcr ipt containing al l aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hear ing 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 the date of this order. A ny extensions of t ime must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: Oc tober 2, 2019 Do not publish