             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-89,364-01


                    EX PARTE NICHOLAS ROYAL PORTER, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                   CAUSE NO. 18049A IN THE 21ST DISTRICT COURT
                           FROM WASHINGTON 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 murder and was

sentenced to imprisonment for life. He did not appeal his conviction.

        Applicant contends that trial counsel rendered his plea involuntary by advising him that the

trial court could place him on deferred adjudication probation and by not advising him that, had he

pleaded not guilty and gone to trial, he could have raised sudden passion at punishment. In a

supplemental ground, Applicant contends that trial counsel told him that if he waited much longer

to decide whether to plead guilty to murder, he might be charged with capital murder because he
                                                                                                      2

murdered the deceased in a narcotics transaction.

        We remanded this application and directed the trial court to order counsel to respond to

Applicant’s original grounds. We also directed the trial court to make findings of fact and

conclusions of law and determine whether counsel rendered Applicant’s plea involuntary. On

remand, counsel responded in a sworn affidavit to Applicant’s original grounds and the trial court

made findings of fact and concluded that counsel was not deficient and Applicant was not

prejudiced.

        We believe that the record should be further developed. 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 hold a live evidentiary hearing.

        Applicant appears to be represented by counsel. If he is not, is indigent, and wants to be

represented by counsel, the trial court shall appoint an attorney to represent him at the hearing. TEX .

CODE CRIM . PROC. art. 26.04.

        After holding the evidentiary hearing, the trial court shall determine (1) whether counsel

advised Applicant that the trial court could place him on deferred adjudication probation and that

he could be charged with capital murder because he murdered the deceased in a narcotics transaction;

(2) whether counsel’s conduct was deficient; and (3) whether, but for counsel’s alleged deficient

conduct, Applicant has shown that there is a reasonable probability that he would not have pleaded
                                                                                                      3

guilty but instead insisted on a trial.1 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: September 11, 2019
Do not publish




       1
          In its findings of fact and conclusions of law, the trial court found that, even if counsel
failed to properly advise Applicant that he was not eligible for deferred adjudication probation,
the outcome would not have been different because Applicant would not have been placed on
deferred adjudication probation given the overwhelming evidence presented by the State.
Because Applicant pleaded guilty, he has the burden of showing that but for counsel’s alleged
deficient conduct he would not have pleaded guilty but instead insisted on a trial. Hill v.
Lockhart, 474 U.S. 52, 59 (1985); Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App. 2018).
