## 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-87,658-01

EX P ARTE ZAC HARY WHITES IDE, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 2015-CR- 2958-W1 IN THE 399 DISTRICT COURT T H F ROM BEXAR COUNTY

Per curiam . O R D E R Pursuant to the provisi o n s o f Art icle 11.07 of the Texas Code of Criminal Procedure, 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 was convicted of possession with intent to deliver a controlled substance and sentenc ed to forty-five year s’ imprisonment. The Four th Court of Appeals aff

irmed his conviction. W

hiteside v. State , No. 04-16-00171- CR (T e x . App.—San Antonio Mar. 8, 2017) (not designated f or publication). Applicant contends, among other things, that his trial counsel rende red ineffe ctive assistance beca use he did not explain the possibili ty that Applicant would fac e the habitual offe nder punishment rang e. Applicant argues that this cause d his ref usal o f a 2 0 -year plea offe r to be2

involuntary

. 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 Argent , 393 S.W .3d 781, 784 (Tex. Crim. App. 2013). Counsel ha s provided an aff

idavit and the trial court h as made finding s, but 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 for um for findings of fac t. The trial court shall order trial counsel to provide a supple m en t al re s ponse t o Applicant’s claim of i neff ective 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 the trial court elects t o hold a hearing , it shall deter mine whether Appl i cant is indige nt. I f Applicant i s i ndigent and wishes to be represente 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 supplemental finding s of fac t and conclusions of law as to whether the perf ormanc e of Applicant’s tr ial counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e cause d Applicant’s decision to reje ct a plea offe r to be invo l un t ary . S hould the trial court deter

mine that counsel was defic ient, it shall deter mine whether there is a rea sonable probability that: (1) Applicant would have acc epted the earlier offe r i f counsel had not g iven ineffe ctive assistance ; (2) the prosec ution would not have withdrawn the offe r; and (3) the court would not have ref

used to acc ept the plea barg ain. 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 Applicant’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 issues sh al l b e resolved within 90 days of this order

. A supplemental transcript containing all3

aff idavits and int errog atories or the transc ription of the 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 forwa rded to this Court within 120 days of the date of this order

. Any extensions of time must be reque sted by

the trial cour

t and shall be obtaine d from this Court.

Filed: De cembe r 13, 2017 Do not publish