## 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-82,526-01

EX P ARTE SHANE MICHAEL CRITE S, App licant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. CR-12- 24077 IN THE 336T H DISTRICT COURT

F ROM F ANNIN C OUNTY

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 (Tex. Crim. App. 1967). Applicant pleade d guilty to theft in exchang e for a two-y ear state jail sentenc e, probate d for five y ear s. His probation was later revoke d pursuant t o a plea of “true ,” and Applicant was sentenc ed to two year s’ state jail imprisonm en t af t er

revoc ation. He wa ived his right to appeal. Applicant contends that his trial counsel rende red ineffe ctive assistance beca use counsel did not object when the trial court elec ted not to follow the sentenc ing rec ommendation afte r revoc ation of probation. The habea s rec ord contains a “plea agree ment” wher eby Applicant agree d to plead2

“true ” to violating the terms of his community supervision and waive his rig ht to appea l in exchang e for a sentenc e of twelve months’ state jail time. The agree ment was appar ently approve d by the trial court. Neve rtheless, the judgme nt revoking p robation ref lects a sentenc e afte r revoc ation of two y ear s’ state jail, rather than twe lve months as indicated in the a g ree ment. 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). 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. This Court has held that there is no such thing as a binding plea agree ment in the context of probation revoc ation. Gutierrez v. State , 108 S.W .3d 304 (Tex. Crim. App. 2003). However , i f Applicant’s counsel at

revoc ation advised him to plead “true ” to the alleg ations in the motion t o revoke , and to w aive his rig ht to appea l without also advising Applicant that any plea agree ment was not binding on the trial court, Applicant may have relied on counsel’s advice to his detriment. The trial court shall order trial counsel to respond to Applicant’s claim of ineffe ctive assistance of counsel. 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 court el ects to hold a hearing , it shall deter mine whether Applicant is indige nt. I f Appl icant is indige nt and wishes to be repr esente d by counsel, the trial court 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 and co n cl u s i ons of law as to whether the perf ormanc e of Applicant’s trial counsel was defic ient and, if so, whether co u n s el’s defic ient perf ormanc e prejudice d Appl icant. 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 for3

habea s corpus re lief. This application will be held in abeyance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of this order

. A supplem en t al t ra n s cript 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, alongwith the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be forwar ded to this Court within 120 day s of the date of this order. Any extensions of t ime shall be obtained f

rom this Court.

Filed: January

14, 2015 Do not publish