## 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-81,778-01

EX P ARTE BRANDON LOVING OOD, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 5668 IN THE 424 DISTRICT COURT T H F ROM SAN SABA 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 (Tex. Crim. App. 1967). Applicant was convicted of continuous sexual abuse of a child and sentenc ed to twenty -five y ear s’ imprisonment. He did not appea l his conviction. Applicant contends his plea was involuntary beca use counsel failed to seek the suppression of a rec ording of a telephone call that was taken in violation of Applicant’s Fifth Amendment rig ht to counsel. Applicant also contends that his plea was involuntary beca use counsel advised Applicant incorre ctly as to his parole elig ibilit y . Ex parte Moussazadeh , 361 S.W .3d 684, 691–92 (Tex. Crim. App. 2012); T E X . G O V ’ T . C O D E § 508.145(a)

. Applicant has alleg ed fac ts that, if true, might entitle2

him to relief

. 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 t rial court is the appropria te forum f or finding s of fa ct. The tria l 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 t appea rs that Applicant is repr esente d by counsel. The trial court shall deter mine whether Applicant is repr esente d by counsel, and if not, whether Ap p l i ca n t is indige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to repr esent Applicant at the he aring . 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 conclusions of law in r eg ard to A pplicant’s claim that his plea was involuntary

. The trial court shall make sp ecific finding s as to whether counsel fa iled to move to suppress the rec orded jail phone conve rsation. I f the c ourt finds counsel

err ed, it shall make specific finding s as to whether there is a rea sonabl e p robability that, but for counsel’s er ro rs , Appl icant would have insist ed on a trial. The trial court shall also make specific finding s as t o whether counsel to l d Ap p l i cant that he would be eligible for parole in twelve and a half y ear s, despite a conviction for continuous sexual abuse of a child. I f the court finds counsel g ave inacc urate advic e as to parole , it should make specific finding s as to whether that advice induced Applicant to plead g uilty

. 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 r elief. This application will be held in abey ance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of th i s o rd er . 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 hear ing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall3

be forwar ded to this Court withi n 120 day s of the date of t his order

. Any extensions of t ime shall be obtained f

rom this Court. Filed: September

17, 2014 Do not publish