## 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-89,097-01

EX P ARTE JOSH UA AND ERSON FAN T-CLARK , Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 18368A IN THE 21 DISTRICT COURT ST F ROM WASHING TON 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 g uilty and was convicted of robbe ry

and sente nced to se ventee n y ear s’ imprisonment. He did not appea l his conviction. Applicant contends that his trial counsel rende red ineffe ctive assistance beca use he coer ced Applicant into pleading g uilty by telling him that he would be sever ely punished if he did not acc ept the S tate’s plea offer and by telling him that he could not do an open plea to the j udg e. The S tate contends that Applicant was indicted for ag g ravated robber y and allowed to plead g uilty to robber y , but the habea s rec ord forwa rded to this Court ref

lects that Applicant waived the indictment and was2

char g ed by

complaint and information with a simpl e robbe ry . On November 7, 2018, this Court rema nded this application for an aff idavit from counsel and finding s from the trial court. We rec eived a supplemental rec ord on Fe brua ry 4 , 2019. The supplemental re cord doe s not support all of the trial cour t’s finding s and re commendation. 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 h al l order trial counsel to file a supplemental response stating what he believed to be t h e ag g rava ting factor in the allegation of robbery

. 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 elects t o hold a hearing , it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wish es t o 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 supplemental finding s of fac t reg arding what, specific ally , was the fac tor which raised the offe nse from the robber y alleg ed in the complaint to ag g ravated robber y . The trial court shall supplement the rec ord with any documents supporting an ag g rava ted robber y char g e in this cause . The trial court shall also 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 claim 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 i s s u es shall be resolved within 90 day s of this order

. A supplemental transcr ipt containi n g al l aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hearing or3

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. A ny extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: F ebrua

ry 27, 2019 Do not publish