## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S NO. WR-68,962-01

EX P ARTE TRACY RAY GIBSON, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. F 14962-2007-A IN THE 145T H DISTRICT COURT

F ROM NAC OGDOCHES COUNTY

Per curiam . O R D E R Pursuant to the provisions of Ar t i cl e 1 1

. 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). This Court orig inally denied the application without written order on J anuar y 9, 2008. Howeve r, it has since c ome to light that the de nial may have been err oneous. There fore , this Court will now rec ons i d er the denial on the Court’s own motion, and will rema

nd the matter to the trial court for aff idavits and fi n d i n g s to further addre ss Applicant’s c laims. Applicant pleade d g uilty pursuant to an indictment which named the offe nse as ag g ravated2

robber y but alleg ed the e lements of robbe ry , enhanc ed by a prior felony conviction. Pursuant to a plea ag ree ment, Applicant was sentenc ed to twenty y ear s’ imprisonment. He did not appea l his conviction. 1 Applicant contends, among other things, that his trial counsel rende red ineffe ctive assistance beca use counsel did not investigate and discover that the fac ts did not support a char g e of ag g ravated robber y . Applicant also alleg es that trial counsel did not explain to him the elements of the offe nse of agg rava

ted robbery

. As noted above, the i ndict m en t al l ege d the elements of robbery , a second deg ree felony with a single prior felony enhanc ing the punishment rang e to that of a first deg ree felony , or five to ninety -nine y ear s’ or life imprisonment. Howeve r, the offe nse listed in the heading of t he ind i ct m en t was ag g ravated robbery

. The plea paper s show that Applicant was admonished that he was pleading g uilty to ag g ravated robber y , and that the punishmen t rang e was that of an enhanc ed first deg ree felony , or fiftee n to ninety -nine y ear s’ or life imprisonment. Altho u gh t h e twenty -y ear sentenc e in exchang e for which Applicant pleade d g uilty falls within both punishment rang es, the rec ord sug g ests that Applicant was not informed that the minimum punishment was five, rathe r than fiftee n y ear s’ imprisonment. The judgme nt showed the offe nse of which Applicant was convicted a s ag g ravated robbe ry , a first de g ree felony

. After Appli ca n t fi l ed this application in the district court but befor e the application was forwa rded to this Court the trial court enter ed a judgme nt nunc pro tunc , corr ecting the judgme nt to ref lect a conviction for the second deg ree offe nse of robber y . The trial court rec ommended denying relief on the habea s application, finding that Applicant in fac t pleade d g uilty to robber y , enhanc ed, Applicant did try

belatedly to file a dire ct appe al, but the appe al was dismissed for w ant 1 of jurisdiction. Gibson v. State , No. 12-12-00403- CR (Tex. App. – Ty ler, De cembe r 5, 2012)(not desig nated f

or publication).3

rathe r than ag g ravated robber y , enhanc ed. Appar ently , Applicant was not pr ovided with a copy of the judgme nt nunc pro tunc until seve ral y ear s afte r this Court had denied his ha beas application. I n response to subsequent habe as applications filed by Applicant, the trial cour

t also noted that the j udg ment nunc pro tunc was to Appl i ca n t ’s b en ef i t. Whil e it is true that Applicant is not prese ntly suffe ring the adver se parole conseque nces of an ag g rava ted robber

y convic tion beca

use of the judgme nt nunc pro tunc , the entry of the judgme nt nunc pro tunc did not addre s s the possibili ty that Applicant’s plea was not knowingl y an d voluntarily enter ed beca use he was incorre ctly

admonished as to the a

pplicable punishment ra

ng e for the offe nse cha

rg ed. Applicant has alleg ed fac ts that, if true, might entitle to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); Ex parte Patterson , 9 9 3 S

. W

. 2 d 114, 115 (Tex. Crim. App. 1999). 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 trial court is the appropr iate forum for finding s of fac t. The trial court shall order trial counsel to respond to Applicant’s claims of ineffe ctive assi s t an ce o f counsel. Specifica lly , trial counsel shall state whether he perf ormed an investigation of the fac ts underlying this c harg e, and if so, whether the fac ts supported a char g e of ag g ravated robber y , or only a char g e of robber y . Trial counsel shal l s t ate whether he discussed with Applicant the elements of an ag g rava ted robber

y char g e, and the fac ts the State would have to prove in order to convict Applicant of ag g ravated 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 co urt elec ts to hold a hearing , it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wishes to be repr esente d by cou n s el , the trial court shall appoint an attorney to repre sent Applicant a t the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04.4

The trial court shall first supplement the habea s re co rd with a transcr ipt of the plea proce eding s in this case , if such a t ra n script exis ts or can be produce d. The trial court shall then make finding s of fac t and conclusions of law as to whether the perf ormanc e of Applicant’s trial

c o u n s e l was defic ient and, if so, whether counsel’s defic ient perf ormanc e prejudice d Applicant. Th e trial court sha ll make finding s as to whether Applicant would have pleade d g uilty in exchang e for

a twenty -y ear sentenc e had he been proper ly advised that the applicable punishment rang e was five to ninety -nine y ear s’ or life imprisonment, rat h er t han fiftee n to ninety -nine y ear s’ or life imprisonment. 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 abey ance until the trial court has resolved the fac t issues. The issues shall be resolved within 9 0 d ay s o f t h is order

. 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, shall be for war ded to this Court within 120 day s of t he date of this order. A ny extensions of ti me shall be obtained f

rom this Court.

Filed: Jul y

1, 2015 Do not publish