IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 32,479 IN THE 30TH DISTRICT COURT
FROM WICHITA COUNTY
O R D E R
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 involuntary manslaughter and punishment was assessed at confinement for six years. Appeal was affirmed. Watson v. State, No. 02-01-230-CR (Tex.App. - Fort Worth, delivered January 10, 2002, no pet.).
Applicant contends, inter alia, that his appellate counsel failed to timely notify him that his appeal had been affirmed and that he could file a pro se petition for discretionary review, and that his trial counsel was ineffective in telling him that he had an agreement for community supervision and allowing him to plead guilty when the State had no evidence to prove Applicant committed this offense. The trial court has made findings of fact that this was an open plea, but has made no findings pertaining to whether counsel was ineffective at trial or on appeal.
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 to determine what evidence would have been presented if Applicant had not pled guilty and is ordered to obtain affidavits from Applicant's appellate and trial counsel addressing whether appellate counsel timely notified Applicant that his appeal had been affirmed and that he could file a pro se petition for discretionary review, and what trial counsel advised Applicant concerning the existence of an agreement for community supervision. 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.
The trial court shall then make findings of fact as to a summary of what evidence the State intended to present to prove this offense if Applicant had not pled guilty, what trial counsel advised Applicant concerning the existence of an agreement for community supervision, and whether Applicant's appellate counsel notified Applicant that his appeal had been affirmed and that he could file a pro se petition for discretionary review. The court may also make findings of fact as to any other matters the court deems relevant to the legality of Applicant's confinement.
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.
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: March 29, 2006
DO NOT PUBLISH
1. 2.