              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                            NO. WR-83,796-04 AND WR-83,796-05


                           EX PARTE JOSHUA EARLY, Applicant


                 ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
              CAUSE NO. D-1-DC-08-904122 IN THE 403RD DISTRICT COURT
                              FROM TRAVIS 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 pleaded guilty to possession

of a controlled substance, and was sentenced to six years’ imprisonment. He did not appeal his

conviction.

       This Court originally received Applicant’s -04 application on September 28, 2015. Based

on inaccurate information that Applicant had discharged his sentence on May 8, 2015, this Court

erroneously dismissed the application on October 14, 2015. On November 2, 2015, this Court

received the -05 application. It was discovered that Applicant had not, in fact, discharged his
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sentence in this case, but was being held on a pre-revocation warrant awaiting disposition of new

charges. Therefore, this Court has elected to withdraw the previous dismissal of the -04 application

on its own motion, and to consider the merits of the claims raised in both the -04 and -05

applications. The habeas records in both cases are lacking much of the information necessary to the

resolution of Applicant’s claims. There are no affidavits from trial counsel or from TDCJ, no

answers from the State, and no findings of fact from the trial court.

        In the -04 application, Applicant contends, among other things,1 that his trial counsel

rendered ineffective assistance by failing to timely establish an attorney-client relationship, failing

to protect Applicant’s right to a speedy trial, failing to challenge the search, seizure and arrest in this

case, and failing to demonstrate an understanding of the law applicable to the case. As noted above,

there is no affidavit from trial counsel in the record.

        The record in the -04 case contains a copy of a “re-indictment,” which charges possession

of a controlled substance in Penalty Group 2 (MDMA) in an amount of four grams or more but less

than 400 grams, with a single prior felony enhancement. The offense as charged was a second

degree felony, enhanced to first degree felony punishment range.

        The -04 record also contains a copy of a plea agreement, signed by Applicant, trial counsel,

the prosecutor, and the trial judge. The plea agreement appears to show that the State offered to

waive the enhancement allegation and allow Applicant to plead guilty to possession of less than four

grams of MDMA, in exchange for a three-year sentence and consideration of two additional charges

under Texas Penal Code §12.45. The offense as reduced by the specified agreement would have

been a third degree felony, but the same plea documents show that Applicant was admonished as to


        1
            This Court has reviewed Applicant’s other claims and finds them to be without merit.
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the punishment range for a second degree felony. The judgment and sentence for this same cause

number indicates that Applicant pleaded guilty to the second degree felony offense of possession of

an unspecified quantity of methamphetamine, a substance in Penalty Group 1, and received a six-

year sentence. There is nothing in the record to indicate why the plea agreement shows a plea of

guilty to possession of less than four grams of a substance in Penalty Group 2 in exchange for a

three-year sentence, but the judgment shows a conviction for possession of a controlled substance

in Penalty Group 1 and a six-year sentence.

        In the -05 application, Applicant alleges that he is being improperly held on the pre-

revocation warrant past his maximum discharge date, awaiting disposition of new charges. Although

Applicant concedes that the pre-revocation warrant issued before his sentence would have been

successfully discharged on parole, he alleges that the pre-revocation warrant is preventing him from

making bond or retaining counsel for the new charges. Although Applicant is not entitled to a final

revocation hearing within a specified time because of the new charges, he is entitled to a preliminary

hearing within a reasonable time, unless he waives such a preliminary hearing. Ex parte Cordova,

235 S.W.3d 735 (Tex. Crim. App. 2007).

        Applicant has alleged facts in both applications 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 in the -04 application. Specifically, counsel shall state when he was appointed
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or retained to represent Applicant, and when he met with Applicant to discuss the case for the first

time. Counsel shall state whether he advised Applicant of his options regarding pleading guilty or

taking the case to trial. Counsel shall state whether he considered filing a motion to suppress or

otherwise challenging the search, seizure and arrest in this case. Trial counsel shall state whether

the controlled substance which Applicant was charged with possessing was tested, and if so, whether

the substance was MDMA as charged in the indictment, or methamphetamine as shown on the

judgment. Counsel shall state whether there was a plea agreement calling for a three-year sentence,

as suggested by the plea documents in the record, and if so, how Applicant ended up with a six-year

sentence.

       The trial court shall also order the Texas Department of Criminal Justice’s Office of the

General Counsel to file an affidavit, stating whether Applicant is currently being held pursuant to

a pre-revocation warrant, and whether he is facing new charges. If Applicant is being held on a pre-

revocation warrant, the affidavit shall state the dates of the issuance and execution of such warrant.

The affidavit shall state whether Applicant has been advised of his rights in the revocation process,

and if so, whether he has waived his right to a preliminary hearing. If Applicant has not waived his

right to a preliminary hearing, the affidavit shall state whether Applicant has been afforded such a

hearing. The affidavit shall state whether Applicant has been afforded a final revocation hearing,

and if so, whether his parole has been revoked. 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.
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        The trial court shall supplement the habeas record with all of the documents relevant to

Applicant’s plea and conviction in this case, including the original indictment and any re-

indictments, the trial docket, any pre-trial motions filed and ruled on prior to the plea, any documents

showing the results of testing performed on the controlled substance(s) in this case, all of the plea

papers, and any evidence introduced in support of the plea. In addition, the trial court shall

supplement the record with copies of the pre-revocation warrant, the State’s motion to revoke

Applicant’s parole, any documents showing that Applicant was informed of his rights in the

revocation process, and any waivers of his rights in the revocation process, including any waiver of

a preliminary or final revocation hearing.

        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 findings as to whether Applicant

has been afforded all of his rights in the revocation process, and whether his parole has been revoked

or not. If Applicant’s parole has been revoked, the trial court shall make findings as to whether

Applicant was granted credit for time he spent on parole prior to revocation, and as to whether he

has discharged his sentence in this case. 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: November 25, 2015
Do not publish
