## 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-88,888-01

EX P ARTE P HILL IP HENRY F REEMAN, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. CR32859-A IN THE 75 DISTRICT COURT T H F ROM LIBERTY 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 wa s convicted of esca pe and sentenc ed to eig hteen y ear s’ imprisonment. He did not appea l his conviction. Applicant contends that his plea ag ree ment i s u n enfor cea ble beca use it called for presentenc e jail time cre dits that TDCJ wi l l n o t h onor, rende ring the g uilty plea involuntary

. He contends that his sentenc e is illega l beca use the same conviction was used both to prove an element of the offe nse and as an enhanc ement. Finally , he alleg es that his trial counsel rende red ineffe ctive assistance beca

use she allowed him to enter an unenfor cea ble plea ag ree ment for an illega l sentenc e.2

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 W ickware , 853 S.W .2d 571, 573 (Tex. Crim. App. 1993); McW illiams

v. State , 782 S.W .2d 871, 875–76 (Tex. Crim. App. 1990). In these circ umstances, additional fac ts

are neede d. As we he ld in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fac t. The t ri al co u rt s h all order trial counsel to respond to Applicant’s claim of ineffe ctive 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 t he trial court elects t o h o l d 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 counsel, the t ri al 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 co u rt shall make finding s of fac t and conclusions of law as to whether the Applicant’s plea was inv oluntary and whether his sentenc e is illega l. The court shall also make finding s of fac t deter

mining whether the perf

ormanc e of Applicant’s trial counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e prejudice d Applicant. In evaluating claims relating to the applicable punishment rang e, the court shall consider whether the State knew of

other prior felony convictions that wer e available to enhanc e Applicant’s punishment. Ex parte Parrott , 396 S.W .3d 531 (Tex. Crim. App. 2013). The trial court shall also make any other finding s of fa ct and conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s claim for habea s corpus 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: Oc tober 24, 2018 Do not publish