Per curiam.
This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, § 3, TEX.CODE CRIM.PROC. Applicant was convicted of aggravated assault and punishment, enhanced by a prior conviction, was assessed at confinement for seventy-five years. This conviction was affirmed on appeal, Gibson v. State, No. 01-03-422-CR (Tex. App. - Hou. [1st], delivered August 19, 2004, no pet.).
Applicant contends, inter alia, that his plea was involuntary and his counsel was ineffective because counsel told him he would receive a sentence of five years on this conviction if he pled guilty and did not receive deferred adjudication. The trial court has made findings of fact that this was raised and rejected on appeal, but that opinion reflects that point was rejected because no hearing had been conducted on the voluntariness of Applicant's plea or the effectiveness of his counsel.
It is the Court's opinion that additional facts need to be developed and that the trial court is the appropriate forum. Therefore, the trial court is ordered to obtain an affidavit from Applicant's trial counsel addressing Applicant's factual allegations, and to allow Applicant an opportunity to tender any other affidavits to support his allegations. Alternatively, the trial court may conduct an evidentiary hearing at which Applicant would have an opportunity to prove his allegations, and the trial court is not limited to the above issues if the court believes other facts relevant to the legality of Applicant's confinement should be determined.
If an evidentiary hearing is conducted, and Applicant is found to be indigent at the time of the hearing, the trial court shall ensure that Applicant is represented by counsel unless such is affirmatively waived.
The trial court should then make findings of fact as to what counsel advised Applicant as to the punishment he would receive, and whether Applicant pled guilty based on incorrect information as to the punishment to be assessed. The court may also make findings of fact as to any other matters the court deems relevant to the legality of Applicant's confinement.
Since this Court does not hear evidence, Ex parte Rodriguez, 334 S.W.2d 294 (Tex.Cr.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Any hearing conducted pursuant to this order shall be held within 90 days of the date of this order. (1) The trial court's findings of fact, any affidavits or transcription of the court reporter's notes, and any other supplementation of the record shall be returned to this Court within 120 days of the date of this order. (2)
DELIVERED: June 14, 2006
DO NOT PUBLISH
1.
In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.2.
Any extensions of this time period should be obtained from this Court.