IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM CAUSE NOS. W01-50787-K & W01-50788-K
IN THE CRIMINAL DISTRICT COURT NO. 4 OF DALLAS COUNTY
Per curiam.
O R D E R
These are applications for writs of habeas corpus which were transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of aggravated robbery, and punishment was assessed at ten years' confinement. Applicant did not pursue an appeal.
Applicant contends that he received ineffective assistance of counsel. Specifically, Applicant contends that he was erroneously advised by trial counsel that if he entered an open guilty plea, the trial court would "most likely" sentence him to probation. Applicant also contends that because of trial counsel's deficient performance, his guilty plea, judicial confession, stipulation of evidence and waiver of jury trial were not knowing and voluntary.
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 does not hear evidence, the trial court is the appropriate forum. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order an affidavit from trial counsel, or it may order a hearing. In the appropriate case the trial court may also rely on its personal recollection. The trial court shall also forward the indictment and any records regarding Applicant's guilty plea and the admonishments given prior to the acceptance of the plea.
If the trial court elects to hold a hearing, the court shall 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 shall make findings of fact as to whether trial counsel erroneously advised Applicant that if he entered an open guilty plea, the trial court would "most likely" sentence him to probation and whether Applicant's guilty plea, judicial confession, stipulation of evidence and waiver of jury trial were knowing and voluntary. The trial court shall 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 17TH DAY OF MAY, 2006.
EN BANC
DO NOT PUBLISH
1. 2.