             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-89,904-01


                      EX PARTE DAVID KEITH GRANTHAM, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. C36803-CR IN THE COUNTY COURT AT LAW
                            FROM NAVARRO 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 engaging in

organized criminal activity and sentenced to 27 years’ imprisonment. The Tenth Court of Appeals

affirmed his conviction. Grantham v. State, No. 10-17-00365-CR (Tex. App.—Waco, May 9, 2018)

(not designated for publication) .

        Applicant contends that his trial counsel rendered ineffective assistance because counsel

failed to properly admonish him of the applicable sentencing range of 25 years to 99 years or life

before rejecting the State’s plea offer of 15 years and advising Applicant that he could receive
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community supervision from the judge if he entered an open plea of guilty.

       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). The State

and the habeas court agree that trial counsel was ineffective. They recommend granting relief so that

Applicant may have a second opportunity to accept the State’s 15-year plea offer.

       However, the record before us does not indicate that trial counsel has had an opportunity to

respond to Applicant’s allegations. “[C]ounsel should ordinarily be accorded an opportunity to

explain her actions before being condemned as unprofessional and incompetent.” Bone v. State, 77

S.W.3d 828, 836 (Tex. Crim. App. 2002). 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 claim of ineffective assistance of counsel. 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 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.
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       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:         June 26, 2019
Do not publish
