             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-83,626-01


                      EX PARTE JARVIS DYWANE TYSON, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. 25638 A-1 IN THE 12TH 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 was convicted of aggravated

assault and sentenced to fifteen years’ imprisonment.

        Applicant contends that his guilty plea was involuntary. He argues that trial counsel informed

him the punishment range was 5 to 99 years or life in prison when it was actually 2 to 20 years and

that he would have asserted a self-defense claim at trial had he known the correct punishment range

did not include the possibility of a life sentence but a maximum of 20 years. Strickland v.

Washington, 466 U.S. 668, 687 (1984). The trial court recommends denying relief because the 15
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year sentence assessed was within the proper punishment range of 2 to 20 years, but this fact does

not address Applicant’s involuntary plea claim.

       It is not disputed in the habeas record that counsel was deficient regarding his advice on the

proper punishment range. See Strickland, supra. Applicant alleges he would not have pled guilty in

the first place and would have asserted his self-defense claim at trial but for counsel’s bad advice.

As the United States Supreme Court has stated, “[T]o satisfy the ‘prejudice’ requirement [of

Strickland], the defendant must show that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,

474 U.S. 52, 59 (1985).

       Applicant has alleged facts that, if true, might entitle him to relief. 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 make additional findings of fact and conclusions of law. First, the trial

court shall make findings regarding whether the punishment range could have been properly

enhanced to that of a first-degree felony with a different prior conviction. Ex Parte Parrott, 396

S.W.3d 531 (Tex. Crim. App. 2013). Second, the trial court shall make findings regarding whether

Applicant would have insisted on trial but for counsel’s bad advice.

       To make the findings, 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
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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 shall

be obtained from this Court.



Filed: September 23, 2015
Do not publish
