IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NUMBER WHCP-05-13694A IN THE 52ND
DISTRICT COURT CORYELL COUNTY
Per curiam.
O R D E R
This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of burglary of a habitation and sentenced to imprisonment for a term of thirty-five years. There was no direct appeal.
In this application for a writ of habeas corpus, Applicant contends, inter alia, that his trial counsel provided ineffective assistance. Applicant alleges that he agreed to plea guilty to an offense of burglary of a habitation with intent to commit theft. He states that this offense, when committed, was a second-degree felony. He alleges that when he went to the plea hearing, the cause was changed to another cause for which Applicant had been charged. This other charge, Applicant reports, was also for burglary of a habitation, but at the time that offense was committed, he says, the crime was a first-degree felony. He states that he was then convicted for the first-degree felony burglary of a habitation rather than for the second-degree felony burglary of a habitation to which he agreed to plea guilty. He states that counsel was ineffective for failing to object to this change or inform Applicant of the ramifications of the change.
Nevertheless, Applicant received deferred adjudication community supervision for a period of ten years. Later, the community supervision was revoked and Applicant was sentenced to a term of thirty-five years in prison. He argues that the maximum sentence he should have received was twenty years as he had only agreed to plea to a second-degree felony.
While the trial court has entered findings of fact and conclusions of law, it is this Court's opinion that additional information is needed, including an affidavit from trial counsel addressing Applicant's ineffective assistance of counsel claims, before this Court can render a decision on this ground for review. Further, the trial court has cited to a transcription of the plea hearing in its findings. The transcription, though, was not included in the record supplied to this Court.
Because this Court cannot hear evidence, Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum. The trial court shall resolve these issues as set out in Article 11.07, Section 3(d), of the Texas Code of Criminal Procedure, in that it shall order an affidavit from trial counsel that addresses Applicant's claims. The trial court may also order depositions, interrogatories, or hold 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 will then, pursuant to the provisions of Article 26.04 of the Texas Code of Criminal Procedure, appoint an attorney to represent him at the hearing. Following the receipt of additional information, the trial court shall supplement the record to this Court with counsel's affidavit, and the trial court shall make any further findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's application for habeas corpus relief. Further, the trial court shall supplement the record to this Court with a copy of the transcription of Applicant's plea hearing, which is cited to in the trial court's findings.
Further, because this Court does not hear evidence, Ex parte Rodriguez, 334 S.W.2d at 294, 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)
FILED: January 18, 2006
DO NOT PUBLISH
1. 2.