             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-89,109-01


                          EX PARTE ROBERT NICHOLS, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 65-13-B (A) IN THE 25TH DISTRICT COURT
                            FROM GONZALES 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 driving while

intoxicated in exchange for a ten-year probated sentence. His community supervision was later

revoked and he was sentenced to nine years’ imprisonment.

        Applicant contends that his trial counsel rendered ineffective assistance and that his plea at

revocation was not knowingly and voluntarily entered, because he believed that he was pleading

“true” in exchange for a six-year sentence. The record contains a plea agreement, signed by

Applicant and approved by the trial court in which the State agreed to recommend a six-year
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sentence after revocation and also agreed not to pursue a new felony charge. However, the trial court

sentenced Applicant to nine years’ imprisonment after revocation, and certified that Applicant had

waived his right to appeal. The plea papers at revocation do not contain an express waiver of appeal.

Although this Court has held that there is no such thing as a binding plea agreement in the context

of a probation revocation, if Applicant’s counsel advised him to plead “true” and to waive his right

to appeal without advising him that the plea agreement was not binding on the trial court, Applicant

might have relied on counsel’s advice to his detriment. If Applicant did not expressly waive his right

to appeal from the revocation, trial counsel should have advised him that he retained such a right and

that the trial court’s certification was incorrect.

        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. 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 first supplement the habeas record with a copy of any express waiver of

his right to appeal from the revocation of his community supervision, and with a transcript of the

plea hearing. If Applicant did not expressly waive his right to appeal from the revocation, the trial

court shall make findings of fact and conclusions of law as to whether Applicant was advised that
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he did have a right to appeal, and if so whether he indicated a desire to appeal from the revocation.

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

Applicant’s revocation counsel was deficient and, if so, whether counsel’s deficient performance

prejudiced Applicant. The trial court shall also make findings of fact and conclusions of law as to

whether Applicant’s plea of “true” 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 claims 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: November 7, 2018
Do not publish
