## 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-83,796-04 A ND WR- 83,796-05

EX P ARTE JOSH UA EARLY, Applicant

ON AP P LICATIONS FOR WRITS OF HABEAS CORP US CAUSE NO. D-1-D C-08-904122 IN THE 403RD DIST RICT COURT

F ROM TRAVIS 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 oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant pleade d g uilty to possession of a controlled substance, and was sentenc ed to six y ear s’ imprisonment. He did not appeal his conviction. This Court orig inally rec eived Applicant’s -04 application on S eptember 28, 2015. Ba sed

on inacc urate informatio n t h at Applicant had discharg ed his sentenc e on May 8, 2015, this Court

err oneously dismiss ed the application on October 14, 2015. On No v ember 2, 2015, this Court

rec eived the -05 application. I t was discovered t h at Ap p l icant had not, in fac t, discharg ed his2

sentenc e in this case , but was being held on a pre-re vocati o n wa rr an t awa iting dis position of new char g es. There fore , this Court has elec ted to withdraw the previous dismiss al of the -04 application

on it s o wn m otion, and to consider the merits of the claims raised in both the -04 and -05 applications. The habea s rec ords in both case s are lacking much of the information nece ssary to the resolution of Ap p l i cant’s claims. There are no aff idavits from trial counsel or from TDCJ , no

answe rs from the State, a nd no finding s of fa ct from the tr ial court. I n the -04 application, Applicant contends, among other things, that his trial co u n s el 1 rende red ineffe ctive assistance by failing to timely establish an attorney -client rela tionship, failing to protec t Applicant’s rig ht to a speedy trial, failing to challeng e the sear ch, seizure and arr est in this

case , and failing to demonstrate an understanding of the law applicable to the case . As noted above, there is no affida vit from trial counsel in the r ecor d. The recor d in t h e -04 case contains a copy of a “re -indictment,” which char g es poss ession of a controlled substance in Penalty Group 2 (MDMA) in an amount of four g rams or more but less than 400 g rams, with a single prior felony enhanc ement. The offe nse as ch ar g ed was a second deg ree felony , enhanc ed to first deg ree felony punishment rang e. The -04 rec ord also contains a copy of a plea ag ree ment, signe d by Applicant, trial counsel, the prosec utor, and the trial judge

. The plea ag ree ment appea rs to show that the State offe red to waive the enhanc ement alleg ation and allow Applicant to plead g uilty to possession of less than four g rams of MDMA, in exchang e for a three -y ear sentenc e and considera tion of two additional char g es under Texas Penal C o de §12.45. The offe nse as reduc ed by the specifie d ag ree ment would have been a third deg ree felony , but the same plea documents show that Applicant was admonished as to

This Court has review ed Applica nt’s other c laims and finds them to be without merit. 13

the punishment rang e for

a sec ond deg ree felony

. The judgment and sentenc e for this same c ause number indicates that Applicant pleade d g uilty to the second deg ree felony offe nse of possession of an unspecified quantity of m ethampheta mine, a subst ance in Penalty Group 1, and rec eived a six

y ear sentenc e. There is nothing in the rec ord to indicate why the plea ag ree ment shows a p l ea o f g uilty to possession of less than four g rams of a substan ce in Penalty Group 2 in exchang e for a three -y ear sentenc e, but the judgme nt shows a conviction for possession of a controlled substance in Penalty Group 1 a

nd a six -y ear

sentenc e. I n the -05 application, Applicant alleg es that he is being improperly h el d o n the prerevoc ation war

rant past his maxi mum discharg e date, awa iting dispositi o n o f n e w c h a r g es. Although Applicant co n ce d es that the pre- revoc ation war rant issued befor e his sentenc e would have been

succe ssfully discharg ed on parole , he alleg es that the pre- revoc ation war rant is preve nting him from making bond or reta ining counsel for the new char g es. Although Applicant is not entitled to a final

revoc ation hear ing within a specifie d time beca use of the new char g es, he is entitled to a preliminary hear ing within a rea sonable time, unle ss he waives such a preliminary hear ing. Ex parte Cordova , 235 S.W .3d 735 (Tex. Crim. App. 2007). Applicant has allege d fa ct s in both applications that, if true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); E x p arte Patterson , 993 S.W .2d 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 fa ct. The t ri al co u rt shall order trial counsel to respond to Applicant’s claims of ineffe ctive assistance of counsel in the -04 application. Specifica lly , counsel shall state when he was appointed4

or reta ined to repr esent Applicant, and when he met with A pplicant to disc uss the case for the first time. Counsel sha ll state whether he advised Applicant of his options reg arding pleading g uilty or takin g t h e case to trial. Counsel shall state whether he considere d filing a motion to suppress or otherwise challeng ing the sear ch, seiz ure and arr est in this case . Trial counsel shall state whethe r the controlled substance which Applicant was char g ed with possessing was tested, and if so, whether the substance was MDMA as char g ed in the indictment, or methamphetamine as shown on the judgme nt. Counsel shall state whether there was a plea ag ree ment calling for a three -y ear sentenc e,

as sug g ested by the plea documents in the rec ord, and if so, how Applicant ended up with a six -y ear sentenc e. The trial court shall also order the T ex as De partment of Criminal J ustice’s Offic e of the Gene ral Coun s el to file an aff idavit, stating whether Applicant i s curr ently being held pursuant to

a pre- revoc ation war

rant, and whether he is fac ing new char g es. I f Applicant is being held on a prerevoc ation war

rant, the aff

idavit shall state the dates of the issuance and execution of such war rant. The aff idavit shall state whether Applicant has been advised of his rig hts in the revoc ation proce ss, and if so, whether he has waived his rig ht to a preliminary hear ing. I f Applicant has not waived his rig ht to a preliminary

hear ing, the aff

idavit shall state whether

Applicant has be en aff

orded such a hear ing. The affidavit shall state whethe r Appl icant has been affor ded a final revocation hearing , and if so, whe ther his parole has bee n revoke d. 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 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. 26.04.5

The trial court s h al l supplement the habea s rec ord with all of the documents rele vant to Applicant’s plea and conviction in this case , including the orig inal indictment and any reindictments, the trial docket, any pre- trial motions filed and ruled on prior to the plea, any documents showing the re sults of testing per formed on the controlled substanc e(s) in this case, all of t he plea paper s, and any evidenc e introduced in support of the plea. I n addition, the trial co u rt shall

s u p plement the rec ord with copies of the pre- revoc ation war rant, the State’s motion to rev o k e Applicant’s parole , any documents showing that App l i ca n t was informed of his rig hts in the

revoc ation proce ss, and any waiver s of his rig hts in the revoc ation proce ss, including any waiver of a pre liminary

or final r evocation hearing

. The trial court shall make fi n d i ng s of fac t and conclusions of law as to whether the perf ormanc e of Appl i ca n t ’s trial counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall also make finding s as to whether Applicant has been aff

orded all of his rig hts in the revoc ation proce ss, and whether his parole has been revoke d

or not. I f Applicant’s parole has been revoke d, the trial court shall mak e fi ndings as to whether Applicant was g rante d cre dit for time he spent on parole prior to revoc ation, and as to whether he has di schar g ed his sentenc e in this case . The trial court shall also make any other findings of fac t and conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’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 90 day s of th 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 hear ing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall6

be forwar ded to this Court withi n 120 day s of the date of t his order

. Any extensions of t ime shall be obtained f

rom this Court.

Filed: Nove mber 25, 2015 Do not publish