IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NOS. 29486 & 29487 IN THE 13TH DISTRICT COURT
OF NAVARRO COUNTY
O R D E R
These are post-conviction applications for writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3. Applicant was convicted of possession of more than four ounces of marihuana in a drug-free zone and of possession in a drug-free zone of more than four grams of cocaine with intent to deliver. Punishment was assessed at confinement for five years and ten years, to be served consecutively. No appeal was taken from these convictions.
Applicant contends that his guilty pleas were involuntary and his trial counsel was ineffective because counsel advised him that if he pled guilty to these charges Applicant would receive shock probation, but that the trial court denied the motion for shock probation. The trial court has entered findings of fact that Applicant was not eligible for shock probation and that counsel's actions did not prevent Applicant from receiving shock probation. However, those findings do not address whether counsel incorrectly advised Applicant that he would receive shock probation if he pled guilty, or whether Applicant would have entered guilty pleas if he was not told that he would receive shock probation.
Because Applicant has stated facts requiring resolution and because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution of those issues. 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 Applicant's trial counsel 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, it 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 the receipt of additional information the trial court shall make findings of fact as to what counsel advised Applicant concerning the terms of his plea agreement, and whether Applicant pled guilty with the belief that he would receive shock probation. The trial court shall also make any further findings of fact and conclusions of law which it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application for 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 any affidavits, exhibits, or transcription of the court reporter's notes from any evidentiary hearing, 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)
FILED: March 29, 2006
DO NOT PUBLISH
1. 1 In the event any continuances are granted, copies of the order granting the
continuance should be provided to this Court.
2.