             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-85,144-02


                        EX PARTE BRADY ALAN DANIEL, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                   CAUSE NO. 3029-A IN THE 35TH DISTRICT COURT
                               FROM MILLS COUNTY


      Per curiam. ALCALA , J., filed a concurring opinion in which JOHNSON , J., joined.
YEARY , J., filed a concurring opinion in which KEASLER , and HERVEY , JJ., joined.

                                              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 thirty-five years’ imprisonment. The Third Court of Appeals affirmed his

conviction in Daniel v. State, No. 03-15-00058-CR (Tex. App.—Austin Dec. 10, 2015)(not

designated for publication).

        Applicant contends, among other things, that the State withheld favorable evidence from the

defense in violation of Brady v. Maryland, 373 US 83 (1963). Applicant also alleges that his plea
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was involuntary because he was misadvised regarding the legality of his arrest by his counsel.

       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 order

trial counsel to respond to Applicant’s claims of ineffective assistance of counsel and involuntary

plea. 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 and conclusions of law as to whether the State

withheld material evidence that Applicant was arrested without a valid warrant in violation of the

Fourth Amendment. The trial court shall also make findings of fact and conclusions of law in regard

to Applicant’s claim that his plea was involuntary. The trial court shall also make findings as to

whether the performance of Applicant’s attorney was deficient and, if so, whether counsel’s deficient

performance prejudiced Applicant. If the court finds counsel gave inaccurate advice as to the legality

of Applicant’s arrest, it should make specific findings as to whether that advice induced Applicant

to plead guilty. 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
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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: June 29, 2016
Do not publish
