IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 2002-023A IN THE 274TH DISTRICT COURT
FROM CALDWELL COUNTY
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to twenty-five (25) years' imprisonment. He did not appeal his conviction.
Applicant contends that his plea was involuntary because he was incompetent and did not understand the nature and consequences of his plea. Specifically, he alleges that a visiting judge had ordered a competency evaluation but that no such evaluation was ever conducted. Also, he alleges that he is illiterate and could not read and comprehend the plea papers that he signed. Applicant also alleges that his attorney rendered ineffective assistance because she told him that he could appeal his conviction. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact and conclusions of law in regard to Applicant's claim that his plea was involuntary. Specifically, the trial court shall make findings of fact as to whether a visiting judge ordered a competency evaluation and, if so, whether a competency evaluation was ever conducted. The trial court shall also make findings of fact as to whether counsel believed that applicant was competent to enter his plea. The trial court shall also make findings of fact as to whether Applicant could read and comprehend the plea papers which he signed. The trial court shall also make findings of fact as to whether counsel advised Applicant that he was waiving his appellate rights when he pleaded guilty. The trial court shall make findings of fact as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claims for habeas corpus relief. The record shows that the trial court sue sponte appointed Alexander Calhoun as habeas counsel on 9/2/2003. The trial court shall also make findings of fact as to whether the aforementioned court order was enforced and, if so, shall identify the actions which habeas counsel has taken with regards to the instant habeas petition.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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. Any extensions of time shall be obtained from this Court.
Filed: May 2, 2007
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