IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 2001-CR-4986 IN THE 226TH DISTRICT COURT
FROM BEXAR COUNTY
O R D E R
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 three counts of aggravated sexual assault and received three concurrent sentences of thirty years. The Fourth Court of Appeals affirmed his conviction. Christensen v. State, No. 04-02-00397-CR (Tex. App.-San Antonio, delivered July 16, 2003, no pet.).
Applicant contends that his plea was involuntary because his trial counsel advised him that he had been charged with ten counts of aggravated sexual assault. In a separate ground, applicant contends that count nine of the indictment in his case alleged sexual assault, not aggravated sexual assault. As a result, he contends that his sentence of thirty years for count nine is illegal. Instead, he contends that he should have been sentenced to two to twenty years.
The trial court concluded that applicant's sentence for count nine was illegal and recommended granting relief. We believe, however, that applicant has alleged facts regarding counsel's performance that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. 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 in regard to applicant's claim that his plea was involuntary. 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: August 30, 2006
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