## 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 NOS. WR-45,978-05 AND WR-45,978-06

EX P ARTE BOB BY JOE CRAIN, Appli cant

ON AP P LICATIONS FOR WRITS OF HABEAS CORP US CAUSE NOS. 77956-CR-A A ND 77870-C R-A IN THE 300TH DIST RICT COURT F ROM BRAZ ORIA 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 these applications for wr i t s o f h ab ea s corpus. Ex parte Y o u ng , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant was char g ed in these two

case s with one char g e of unlawful possession of a firea rm by a felon and one char g e of theft. He p leade d g uilty to these and one other felony char g e in exchang e for three concur rent n i n e- y ea r sentenc es. He did not appeal his convic tions. A p p li c a nt c o ntends, among other things, that his trial counsel rende red ineffe ctive as s is ta n c e 1

This Court has review ed Applica nt’s other c laims and finds them to be without merit. 12

beca use trial counsel failed to a dequate ly investiga te the fa cts underly

ing the char g es, and tha

t his g uilty pleas wer e rende red involuntary beca use of trial counsel’s defic ient advice

. Trial counsel has provided an aff

idavit in whic h he states that he discussed with Applicant the nature of the char g es and the punishment ra

ng es for eac h offe nse bef

ore A pplicant pleade d guilty

. The habea s rec ords in these two case s c o ntain copies of the indictments, both of which char g e t h i rd deg ree felony offe nses with no enhanc ements. The habea s rec ords also contain copies o f Brooks notices provi d ed b y t h e State in these two case s, alleg ing a number of prior convictions. Al t h o u gh i t is not clea

r from the notices whether the prior convictions wer e state jail felonies o r felonies, TDCJ ’s rec ords indicate that at least two of the prior convictions contained in the notices

wer e felony convictions, and wer e sequential. There fore , Applicant’s punishment in both of these

case s could have been enhanc ed to that of a habitual felony

. The plea paper s in both case s show that Applicant was admonished as to the punishment rang e for second deg ree felonies and pleade d g uilty to second deg ree felonies in both ca s es , b u t do not specify whether there was a plea to any of the enhanc ement alleg ations, or whether the State waived any or all of the enhanc ement alleg ations. The judge ments in both case s ref lect second deg ree felony offe nses, with no pleas to or finding s on any enhanc ement alleg ations. 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. The trial court

s hall order trial counsel to respond to Applicant’s claim of ineffe ctive assistance of cou n s el

. Specifica lly , trial counsel shall state what advice he g ave to Appl i ca n t re garding the punishment3

rang es for these two offe nses. Trial counsel shall state whether he investiga ted the prior convictions alleg ed in the Brooks notices, and whether he advised Applicant of the punishment rang es for these offe nses with or without enhanc ements. Trial counsel shall state whether the State waived any or all of the enhanc ements in both case s, and whether Applicant pleade d “true ” to any enhanc ements. The trial c ourt 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 elects t o hold a hear ing, 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 court shall ap p o i nt 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 findings of fac t and conclusions of l aw as t o wh ether Applicant pleade d “true ” to any enhanc ements in either of these case s, and if so, shall make finding s as to why the judgme nts in these case s do not ref lect any such pleas or finding s. I f Applicant did not plead true to any enhanc ements, the trial court shall make finding s as to why the judgmen t s show that these offe nses wer e both second deg ree felonies. The trial court shall mak e fi n d i n gs of fac t and conclusions of law as to whether Applicant was advised of the corr ect punishment rang es for these offe nses, and wh ether his pleas of g uilty wer e knowing ly and voluntarily enter ed. The trial court shall also make finding s of fac t and conclusions of law as to whether the perf ormanc e of Applicant’s trial counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court s h al l als o make any other finding s of fac t and conclusions of law that it deems rele vant and a

ppropriate to the dispositi on of Applica nt’s claims for ha

beas c orpus re lief. These applications 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 orde r. A supplemental transcript c ontaining all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hearing or4

deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be forwar ded to this Court wit hin 120 day s of the date of this order. Any extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: Apr il 26, 2017 Do not publish