IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 20077 IN THE 336TH DISTRICT COURT
FANNIN COUNTY
Per curiam.
O R D E R
This is an application for a writ of habeas corpus that was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of murder and was sentenced to confinement for thirty-five years. No direct appeal was taken.
Applicant contends that his plea was rendered involuntary due to counsel's ineffective assistance in advising Applicant that the State could pursue capital punishment at trial and in failing to advise Applicant about the elements of the offense charged and about possible defenses or lesser included offenses that could have been pursued at trial.
On January 12, 2005, this Court entered an order remanding the application to the trial court for findings of fact. We instructed the trial court to make findings of fact as to whether trial counsel was ineffective. On October 7, 2005, this Court received affidavits from trial counsel and the State, but no findings of fact from the trial court. The affidavit of trial counsel, furthermore, failed to address whether he advised Applicant that the State could pursue capital punishment at trial and whether he discussed with Applicant the elements of the offense and possible defenses or lesser included offenses.
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 shall order an additional affidavit, or depositions or interrogatories, from trial counsel, or it may order a hearing. In the appropriate case the trial court may also rely on its personal recollection.
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 shall 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 counsel advised Applicant that if he did not plead guilty the State could pursue capital punishment at trial and whether counsel discussed with Applicant the elements of the offense and possible defenses or lesser included offenses that could have been pursued at trial. 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 26th DAY OF April, 2006.
DO NOT PUBLISH
1. 2.