## IN THE COURT O F CRIMINA L A PPEA LS OF TEXAS NOS. WR-81,736-01 & - 02

EX P ARTE MATTHEW MASON MCK NIG HT, App licant

ON AP P LICATION FOR WRITS O F HABEAS CORPUS CAUSE NOS. 30056A AND 30056B IN THE 3RD JUDICIAL DISTRICT COURT F ROM AND ERSON COUNTY Per curiam . O R D E R Pursuant to the provisions o f Ar t i cl e 11.07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court these applications for writs o f h ab ea s co rp us. Ex parte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of possession of a controlled substance wi t h i n t ent to deliver and sentenc ed to thirty year s’ imprisonment for count one and twenty year s’ imprisonment for count two, to run concur rently

. The Twelfth Court of Appea ls aff irmed his convictions. McKnight v. State , No. 12-11-00365- CR (Tex. App. – Tyler July

31, 2013). Appl icant contends, inter alia , that his counsel rende red ineffe ctive assistance becaus e2

counsel advised Applicant t o decline an offe r from the State of fiftee n year s’ imprisonment. Applicant alleg es that co u n sel advised him to decline the offe r beca use the most the State could prove was simple possession with a maxi mum jail sentenc e of ten year s. Instead, Applicant pleade d “not guilty ” and w as sentenc ed to thirty and twenty

year concur rent sente nces. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 608 (1984); Ex parte Argent , 393 S.W .3d 781 (Tex. C ri m . App. 2013). 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 appropriate forum for finding s of fac t. The trial court shall provide Applicant’s counsel with the opportunity to respond to Applicant’s claim of ineffe ctive assistance of counsel. The trial court shall als o provide the prosec utor with the opportunity to respond as to whether a plea offe r was made. The trial court may use any m ea n s s et o u t in T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d)

. I f the trial court elec ts to hold a hearing, it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt an d wi s h es to be repr esente d by counsel, the trial court shall appoint an attorney to repre sent Applicant at the hearing. 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 as to whether the State extended an offe r of fiftee n year s’ imprisonment in ex ch an ge for Applicant’s plea of “guilty ” to the charg es alleg ed in the indictment. I f the State did make such an o ff er, the trial court shall make finding s as to whether counsel conveyed this offe r to Applicant and whether counsel advised Applicant to decline the offe r, and if so, why

. I f the trial court finds counsel did not pass along this offe r and Applicant would have

acc epted the offe r, the court shall make specific finding s as to whether the prosec ution would have withdrawn the offe r and whether the trial court would have acc epted the offe r. The trial court shall3

make finding s as to whethe r t h e p er formanc e of Applicant’s attorney was defic ient and, if so, whether counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall also make any other finding s of fac t and conclusions of law that it deems rele vant and appropriate to the dispositi on of Applica

nt’s claim 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 order

. I f any continuance s are g rante d, a copy of the order g ranting the continuance shall be sent to this Court. A supplemental transcript containing all aff idavits a nd interrog atories or

the transc ription of the cour t reporte r’s notes f

rom any hearing

or deposition, along with the trial court’s supplemental finding s of fac t and conclusions of law, shall be returne d to this Court within 120 day s of the date of this orde r. Any extensions of time shall be obtained fr om this C ourt.

Filed: September

17, 2014 Do not publish