             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-86,373-01


                        EX PARTE PHILLIP MERLE PITTS, Applicant


              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
       CAUSE NO. W11-12902-L(A) IN THE CRIMINAL DISTRICT COURT NO. 5
                           FROM DALLAS 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 entered an open plea of guilty to

injury to a child, and the case was reset to hear additional punishment evidence and set punishment.

During this period, Applicant filed a motion to withdraw the plea, which was heard and denied by

the trial court. After a punishment hearing, the trial court sentenced Applicant to twenty years’

imprisonment. The Fifth Court of Appeals affirmed his conviction. Pitts v. State, No. 05-13-01053-

CR (Tex. App. — Dallas, May 19, 2015) (not designated for publication).
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        Applicant contends that his original plea counsel, counsel at the motion to withdraw the plea,

and counsel on appeal were all ineffective for various reasons. On July 28, 2016, the trial court

signed a timely order designating issues for resolution. However, the record was properly forwarded

to this Court 180 days after the State was served with the application, with no additional information,

affidavits or findings of fact addressing Applicant’s claims.

        Applicant alleges that his attorney at the original plea was ineffective for failing to investigate

or pursue any possible defenses other than a “post-seizure confusion” defense, which counsel

considered but dismissed based on allegedly erroneous assumptions about the nature of Applicant’s

medical issues. Applicant alleges that plea counsel should have investigated Applicant’s claim that

he had a seizure and did not recall the incident, but may have fallen on the infant. Applicant alleges

that plea counsel failed to investigate the child’s medical records to see if his injuries were consistent

with having been dropped and fallen on by Applicant during a seizure, and failed to investigate

Applicant’s own medical records and history of having major seizures. Applicant alleges that plea

counsel should have had him examined by a medical expert, and should not have relied on his own

limited experience with his son’s epilepsy to dismiss the possibility of such a defense.

        Applicant alleges that his attorneys at the hearing on the motion to withdraw the plea were

ineffective for failing to argue that he should be permitted to withdraw his plea because his

confession to police had been coerced, and because his original plea counsel failed to investigate.

Applicant also alleges that counsel should have argued that he was entitled to withdraw his plea as

a matter of right because the trial court did not pronounce him guilty before recessing the

proceedings to hear additional evidence and impose his sentence. Although it is true that the

judgment had not been pronounced at the time Applicant filed his motion to withdraw the plea, the
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case had been taken under advisement. Therefore, it was within the trial court’s discretion to deny

Applicant’s motion to withdraw the plea.

       Finally, Applicant alleges that his appellate counsel was ineffective for failing to make an

argument on direct appeal that comported with his argument in the motion to withdraw the plea.

       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 Applicant’s plea counsel, counsel at the hearing on Applicant’s motion to withdraw the

plea, and appellate 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). 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 plea counsel, counsel at the hearing on the motion to withdraw the plea,

or appellate 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.

       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
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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: March 1, 2017
Do not publish
