## 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-89,109-01

EX P ARTE ROBERT NICHOLS, Ap plicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 65-13-B (A) IN THE 25T H DISTRICT COURT

F ROM G ONZA LES 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 pleade d guilty to driving while intox icated in exchang e for a ten-year probate d sentenc e. His community supervision was later revoke d and he w as sentenc ed to nine year s’ imprisonment. Applicant contends that his trial counsel rende red ineffe ctive assistance and that his plea at revocation was not knowing ly and voluntarily enter ed, beca use he believed that he was p l ea d i n g “true ” in exchang e for a six -y ear sentenc e. The rec ord contains a plea agree ment, s i gn ed by Applicant and approve d by the trial court in which the State ag ree d to rec ommend a six -y ear2

sentenc e afte r revoc ation and also agree d not to pursue a new felony char g e. Howeve r, the trial court sentenc ed Applicant to nine y ear s’ imprisonment afte r revoc ation, and cer tified that Applicant had waived his rig ht to appea l. The plea paper s at revoc ation do not contain an express waiver of appea l. Although this Court has held that there is no such thing as a binding plea ag ree ment in the context of a probation revoc ation, if Applicant’s counsel advised him to plead “true ” and to waive his rig ht to appea l without advising him that the plea ag ree ment was not binding on the trial court, Applicant might have relied on counsel’s advice to his detriment. I f Applicant did not expressly waive his rig ht to appea l from the revoc ation, trial counsel should have advised him that he reta ined such a rig ht and that the trial cour

t’s cer tification was incor

rec t. 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 shall order trial counsel to r espond to A pplicant’s claims 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 first supplement the habea s rec ord with a copy of any express waiver of his rig ht to appea l from the revoc ation of his community supervision, and with a transcript of the plea hearing. I f Applicant did not expressly waive his right to appea l from the revoc ation, the trial court shall make finding s of fact and conc lusions of law as to whethe r Applica nt was advised that3

he did have a rig ht to appea l, and if so whether he indicated a desire to appea l from the revoc ation. The trial court shall make finding s of fac t and conclusions of law as to whether the perf ormanc e of Applicant’s revoc ation counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall also make f indings of fac t a

nd conclusions of law as to whether Applicant’s plea of “true ” was knowing ly and voluntarily enter ed. 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 Applica

nt’s claims for ha

beas c orpus 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 o f t h 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 hearing or deposition, alongwith the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be for war ded to this Court within 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: Nove mber 7, 2018 Do not publish