              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-88,695-02


                      EX PARTE RODNEY BRYANT CARNES, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. B16636-2 IN THE 198TH DISTRICT COURT
                               FROM KERR COUNTY


        Per curiam.

                                              ORDER

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to evading arrest

with a motor vehicle, and was sentenced to fifty years’ imprisonment. He did not appeal his

conviction.

        Applicant contends that his trial counsel rendered ineffective assistance because trial counsel

failed to communicate a fifteen-year plea offer to him, and that his guilty plea was not knowingly

and voluntarily entered because he was not aware of this first plea offer. According to Applicant,

the fifteen-year offer was made by the State before he was arrested for this offense. Applicant
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alleges that his original appointed counsel communicated a later 25-year offer to him, which he

rejected. However, Applicant alleges that he would have accepted a fifteen-year offer had he known

about such an offer. Applicant later retained a different attorney, who negotiated the fifty-year plea

offer that Applicant eventually accepted. Applicant also alleges that his retained attorney did not

advise him of the previous fifteen-year offer or try to get such an offer reinstated.

       Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these

circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294

(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court

shall order the trial prosecutor to submit an affidavit detailing all plea offers that were extended in

this case, the dates when any such offers were extended and withdrawn, and Applicant’s response

to any such offers. The trial court shall order both Applicant’s appointed and retained trial attorneys

to respond to Applicant’s claims of ineffective assistance of counsel. Specifically, both attorneys

shall detail all plea offers that were made during their respective representations, the dates upon

which such offers were made and/or withdrawn, whether Applicant was advised of any such offers,

and whether he declined any such offers in writing. The trial court may use any means set out in

TEX . CODE CRIM . PROC. art. 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 wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

       The trial court shall make findings of fact and conclusions of law as to whether the

performance of Applicant’s trial attorneys was deficient and, if so, whether either attorney’s deficient
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performance prejudiced Applicant. The trial court shall make findings of fact and conclusions of

law as to whether Applicant’s allegation that he would have accepted a fifteen-year offer had he been

made aware of such an offer is credible, and as to whether Applicant’s eventual decision to plead

guilty in exchange for a fifty-year sentence was knowingly and voluntarily made. The trial court

shall also make any other findings of fact and conclusions of law that it deems relevant and

appropriate to the disposition of Applicant’s claim for habeas corpus relief.

       This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental transcript containing all

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time must

be requested by the trial court and shall be obtained from this Court.



Filed: October 2, 2019
Do not publish
