Application for Writ of Habeas Corpus
(Tex. Code Crim. Pro. Art. 11.072)
Sarah Gunter
CAUSE NO. _______________
EX PARTE	§	IN THE _____________________ COURT
	§
V.	§	OF
	§
______________________	§	__________ COUNTY, TEXAS

TO THE HONORABLE JUDGE OF SAID COURT:
	COMES NOW _______________, Applicant, and files this Application for Writ of Habeas Corpus pursuant to the provisions of Texas Code of Criminal Procedure Article 11.072 and in support of the Application would show as follows:
I.
	On April 8, 2008, Applicant appeared before this Court and entered a plea of guilty in the case styled State of Texas v. _____________, _______________, to the charge of Assault FM w/1 Prior. Pursuant to a plea bargain, Applicant was placed on 4 years community supervision. The State subsequently filed a Motion to Revoke Probation, alleging violations of the terms and conditions of community supervision. The State’s Motion to Revoke Probation is currently pending in this Court.
II.
	Applicant alleges that his plea of guilty resulting in the ensuing community supervision and followed by the State’s Motion to Revoke Probation was involuntary and unlawful for the following reason: 
1. 
Applicant’s plea of guilty was involuntary because Applicant is incompetent. Specifically, Applicant is men­tally retarded. 
2. 
Attorney for Applicant was appointed to represent Applicant on the State’s Motion to Revoke Probation. Dur­ing Attorney’s representation of Applicant, Attorney filed a Motion for Psychiatric Examination, alleging incompetency. Pursuant to the filing of said Motion, the Court ordered the requested evaluation. 
3. 
Pursuant to Court Order, the following actions were taken: “a clinical interview, mental status examination, and psychological testing [were] conducted on __________, 201__, and __________, 201__ . . .” See Report of Competency to Stand Trial, which is hereto attached as Exhibit A and is hereby incorporated as if fully referenced herein. This evaluation was conducted by _____________, Ph.D., and supervised by _______________, Ph.D. The results of the evaluation are that Applicant is not competent and that “there is not a substantial probability that Applicant will obtain competency in the foreseeable future, due to intellectual deficits associated with Moderate Mental Retardation.” See Exhibit A, p. 
4. 
Subsequent to the aforementioned evaluation, Drs. _________ and _________ also completed a Report of Mental Illness, which is hereto attached as Exhibit B and is hereby incorporated as if fully referenced herein. The examiners determined that Applicant is mentally retarded. However, “[Applicant] does not require observation and/or treatment or hospitalization in a mental hospital for the [Applicant’s] own welfare and protection, or for the protection of others.” See Exhibit B, p. 8. 
5. 
Amongst the examinations conducted on applicant was the Wechsler Adult Intelligence Scale—Fourth Edition (WAIS-IV), wherein Applicant “received a Full Scale Intelligence Quotient (IQ) score of 50. This full scale IQ score is associated with a percentile ranking of less than 0.1, indicating that more than 99.9% of persons in the general population receive WAIS-IV Full Scale IQ scores higher than the [Applicant’s].” Ex­hibit B, p. 6–7. 
6. 
Although this is a recent diagnosis, it is not a recent development. Applicant did not suddenly become mentally retarded or develop an IQ of 50. 
7. 
The attorney who represented Applicant at the time that Applicant entered his plea of guilty to the charge of Assault FM w/1 Prior did not seek to have Applicant evaluated for competency. It was not until after the State’s Motion to Revoke Probation was filed that this issue was explored. 
8. 
Applicant had the same IQ of 50 and was, necessarily, incompetent at the time that he entered the plea of guilty in this case. 
III.
	The competency standard for entering a guilty plea is the same as that for competency to stand trial. Godinez v. Moran, 509 U.S. 389 (1993); Rodriguez v. State, 899 S.W.2d 658, 666 (Tex. Crim. App. 1995). “As part of the general requirement that a defendant be competent to understand the proceedings against him or her, that defendant must also be sufficiently competent to comprehend the import of a guilty plea. If the alleged offender is so mentally ill as not to be presently competent, any guilty plea at that time would be suspect. . . .” page 256, Texas Criminal Procedure and the Offender with Mental Illlness: An Analysis and Guide, 4th Ed., Brian Shannon and Daniel Benson, 2008. 
	Texas law specifically forbids the trial court from accepting a plea of guilty “unless it appears that the defendant is mentally competent and the plea is free and voluntary.” Tex. Code Crim. Proc. art. 26.13 (b). The plea of guilty in this case should never have been entered. However, this issue was not placed before the Court at that time because a competency evaluation was never requested by the previous attorney. “We recognize the validity of a guilty plea depends upon whether it was entered voluntarily and made intelligently and, if upon advice of an attorney, that counsel was reasonably competent and rendered effective assistance.” Curry v. State, 861 S.W.2d 479, 483 (Tex. App.—Ft. Worth 1993, pet. ref’d.). When the previous attorney failed to request a competency evaluation, Applicant was denied his right to competent and effective assistance of counsel. 
	It is clear from the competency evaluation and the results thereof that Applicant could not understand his rights or the consequences of a plea, nor could he voluntarily or intelligently waive his rights. Had Applicant been evaluated for competency during the pendency of the original case, this same result (i.e., mental retardation, IQ of 50) would have been had, and Applicant would have been deemed incompetent. Had that evaluation taken place, the plea of guilty could not have and would not have been entered.
IV.
	Applicant requests that the provisions of the Texas Code of Criminal Procedure and the United States Constitution and Texas Constitution be employed to provide Applicant with a hearing and that at the conclusion thereof, Applicant be granted relief and that the (1) Judgment of Conviction by Court be in all things set aside and declared null and void and (2) that Applicant be permitted to withdraw his plea of guilty.
V.
	Attorney for Applicant has conferred with _________________, an Assistant District Attorney for ___________ County, regarding this matter, and he does not oppose the filing of this Writ of Habeas Corpus, as evidenced by his signature on this document.
VI.
	WHEREFORE PREMISES CONSIDERED, Applicant prays the Court issue a writ of Habeas Corpus, set this Application for hearing, and enter an order granting the relief requested and that the Judgment of Conviction By Court be set aside and declared null and void, and that Applicant be allowed to withdraw his plea of guilty and for such other relief as Applicant may show himself to be justly entitled.

Respectfully submitted,
SARAH MITCHELL GUNTER
ATTORNEY AT LAW
State Bar No.: 24035471
1217 Avenue K
Lubbock, Texas 79401
Ph. No. (806) 687-9861
Fax No. (806) 765-8150

Agreed to by:

____________________________________
Assistant District Attorney
State Bar No.: ___________________
P.O. Box ___________
Lubbock, Texas 79408
Ph. No. (806) _____________

STATE OF TEXAS	§
	§
COUNTY OF LUBBOCK	§

	I do solemnly swear that I am the Attorney for the Applicant in the foregoing petition subscribed by me; that I know the contents thereof, and that the allegations of said petition are true.

______________________________
SARAH GUNTER

	SUBSCRIBED AND SWORN TO BEFORE ME by SARAH GUNTER on this the day of ___________, 201__.

______________________________
Notary Public, State of Texas

______________________________
Typed/Printed Name of Notary

______________________________
My commission expires

CERTIFICATE OF SERVICE
	I hereby certify that a true and correct copy of the foregoing Application for Writ of Habeas Corpus was hand-delivered to the Criminal District Attorney of ______________ County, Texas, on the _____ day of __________, 201__.

______________________________
Sarah Gunter