             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                                   NOS. WR-81,736-01 & -02


                 EX PARTE MATTHEW MASON MCKNIGHT, Applicant


            ON APPLICATION FOR WRITS OF HABEAS CORPUS
    CAUSE NOS. 30056A AND 30056B IN THE 3RD JUDICIAL DISTRICT COURT
                        FROM ANDERSON 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 these applications for writs of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts

of possession of a controlled substance with intent to deliver and sentenced to thirty years’

imprisonment for count one and twenty years’ imprisonment for count two, to run concurrently. The

Twelfth Court of Appeals affirmed his convictions. McKnight v. State, No. 12-11-00365-CR (Tex.

App. – Tyler July 31, 2013).

       Applicant contends, inter alia, that his counsel rendered ineffective assistance because
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counsel advised Applicant to decline an offer from the State of fifteen years’ imprisonment.

Applicant alleges that counsel advised him to decline the offer because the most the State could

prove was simple possession with a maximum jail sentence of ten years. Instead, Applicant pleaded

“not guilty” and was sentenced to thirty and twenty year concurrent sentences.

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

466 U.S. 608 (1984); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013). 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 provide Applicant’s counsel with the opportunity to respond to Applicant’s claim of ineffective

assistance of counsel. The trial court shall also provide the prosecutor with the opportunity to

respond as to whether a plea offer was made. 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 as to whether the State extended an offer of fifteen

years’ imprisonment in exchange for Applicant’s plea of “guilty” to the charges alleged in the

indictment. If the State did make such an offer, the trial court shall make findings as to whether

counsel conveyed this offer to Applicant and whether counsel advised Applicant to decline the offer,

and if so, why. If the trial court finds counsel did not pass along this offer and Applicant would have

accepted the offer, the court shall make specific findings as to whether the prosecution would have

withdrawn the offer and whether the trial court would have accepted the offer. The trial court shall
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make findings as to whether the performance of Applicant’s attorney was deficient and, if so,

whether counsel’s deficient performance prejudiced Applicant. 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.

       These applications 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. If any continuances are granted, a copy of

the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be

obtained from this Court.



Filed: September 17, 2014

Do not publish
