IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 2024295-A IN THE 331st JUDICIAL DISTRICT COURT
TRAVIS COUNTY
Per Curiam.
O R D E R
This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of driving while intoxicated, and punishment was assessed at five years of confinement. No direct appeal was taken.
Applicant contends that he received ineffective assistance of counsel. Specifically, the Applicant contends that, after informing counsel the two prior Georgia convictions listed on his indictment for enhancement purposes were not for driving while intoxicated, counsel refused to investigate and improperly allowed him to be convicted for a third-degree felony. Also, the Applicant contends that the prosecutor engaged in misconduct when, knowing there were problems with the Georgia convictions listed on the indictment for purposes of enhancement, he still allowed the Applicant to be indicted for, and convicted of, a third-degree felony. Last, the Applicant contends that the trial court committed an error when, after being informed there were problems with the prior Georgia convictions, he merely informed the parties they could stipulate to their validity, thus allowing the Applicant to be improperly convicted of third-degree felony.
The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from counsel and the prosecutor, or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection.
If the trial court elects to hold a hearing, the court should first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.
Following receipt of additional information, the trial court should make findings of fact as to whether counsel was ineffective for failing to investigate Applicant's prior Georgia convictions used for purposes of enhancement, and whether he was ineffective for advising the Applicant to plead guilty to a third-degree felony. The trial court should also make findings of fact regarding whether there was any misconduct by the prosecutor, or an oversight on the part of the trial court, in this cause. The trial court should also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.
Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex. Crim. 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. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. (1) 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. (2)
IT IS SO ORDERED THIS THE 24th DAY OF MAY, 2006.
EN BANC
DO NOT PUBLISH
1. 2.