Edinbyrd, Joseph Brian

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,247-01

EX PARTE JOSEPH EDINBYRD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W00-23208-H(A) IN THE CRIMINAL DISTRICT COURT #1 FROM DALLAS COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to aggravated robbery and was sentenced to sixty years’ imprisonment. The Fifth Court of Appeals affirmed his conviction. Edinbyrd v. State No. 05-07-00942-CR (Tex. App.—Dallas April 29, 2008). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends, among other things, that his initial plea to deferred adjudication was involuntary because trial counsel failed to explain the consequences of pleading guilty for a deferred adjudication and informed him that if he failed to accept the plea bargain he would be sentenced to over 75 years’ imprisonment. Applicant has alleged facts that, if true, might entitle him to relief.

2 Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant’s claim. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s name.

The trial court shall make findings of fact and conclusions of law as to whether trial counsel’s performance was deficient and Applicant would have insisted on a trial but for counsel’s alleged deficient performance. The trial court shall also make findings regarding the doctrine of laches. Ex parte Carrio, 9 S.W.3d 163 (Tex. Crim. App. 1999). The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant’s claims.

The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court’s findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.

Filed: February 24, 2020 Do not publish