IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM CAUSE NO. 9721-B IN THE 21ST JUDICIAL DISTRICT COURT OF BASTROP 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 pleaded guilty to one count of aggravated sexual assault of a child and one count of indecency with a child, in exchange for ten years of deferred adjudication community supervision. Applicant's community supervision was later revoked and punishment was assessed at thirty-five years' confinement. No direct appeal was taken.
Applicant contends inter alia that his plea was not knowingly and voluntarily entered, because he pleaded guilty only because counsel advised him that his punishment would be "capped" at ten years. Applicant contends that he was neither advised by counsel nor admonished by the trial court that upon revocation of his deferred adjudication community supervision he would be subject to the entire range of punishment for the offense. Applicant further alleges that, had he been admonished of this fact, he would not have pleaded guilty but would have proceeded to trial.
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, 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 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 Applicant was admonished prior to the entry of his plea that upon revocation of his deferred adjudication community supervision, he would be subject to the entire range of punishment for this offense. If the trial court finds that Applicant was so admonished, the court shall include the portion of the transcript or plea papers showing the admonishment. 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 ninety 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 one hundred and twenty days of the date of this order. (2)
IT IS SO ORDERED THIS THE 29th DAY OF March, 2006.
EN BANC
DO NOT PUBLISH
1. 2.