             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-85,448-03


                       EX PARTE SAMUEL BETTIS KHAN, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 23663 A-3 IN THE 278TH DISTRICT COURT
                             FROM WALKER 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 aggravated

robbery in exchange for ten years’ deferred adjudication community supervision. He was later

adjudicated guilty and sentenced to twenty-five years’ imprisonment. The Tenth Court of Appeals

affirmed his conviction. Khan v. State, No. 10-08-00127-CR (Tex. App. — Waco, Aug. 26, 2009)

(not designated for publication).
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        Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance

because trial counsel failed to adequately investigate and discover that Applicant’s co-defendant,

apparently the primary actor in the robbery, was using a toy gun. Applicant alleges that trial counsel

should have tried to quash the indictment or negotiate for a plea to the lesser offense of robbery,

because no deadly weapon was used or exhibited during the commission of the offense. Applicant

alleges that trial counsel failed to advise him as to the elements of the offense of aggravated robbery,

but instead allowed him to plead guilty to that charge even though no deadly weapon was used or

exhibited. Applicant also alleges that trial counsel gave him incorrect advice as to parole eligibility,

but advising him that if his community supervision was revoked he would have to serve only one

quarter of his sentence before becoming eligible for parole. Applicant alleges that the deficiencies

of trial counsel rendered his guilty plea involuntary.

        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 trial counsel to respond to Applicant’s claims of ineffective assistance of counsel.

Specifically, trial counsel shall state whether he was aware at the time of Applicant’s plea that

Applicant’s co-defendant had allegedly used a toy gun in the commission of the offense, and if so,

whether he filed a motion to quash Applicant’s indictment or tried to negotiate for a plea to a lesser

charge. Trial counsel shall state whether he advised Applicant of the effect of the deadly weapon

allegation, and whether he advised Applicant of the elements of robbery and aggravated robbery.


        1
            This Court has considered Applicant’s other claims and finds them to be without merit.
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Trial counsel shall state what advice if any he gave to Applicant regarding his parole eligibility for

this offense. The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

In the appropriate case, the trial court may rely on its personal recollection. Id.

       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 counsel was deficient and, if so, whether counsel’s deficient

performance prejudiced Applicant. The trial court shall make findings as to whether Applicant’s

plea of guilty was knowingly and voluntarily entered. 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: April 5, 2017
Do not publish
