IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 36065-B-H-1 IN THE 124TH JUDICIAL DISTRICT COURT
FROM GREGG 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to burglary of a building, and was sentenced to 15 months' state jail imprisonment. He did not appeal his conviction.
Applicant contends, inter alia, that he entered his plea believing that there was an agreement with respect to sentencing that he would receive between nine and twelve months in jail for his plea to a reduced charge. Applicant alleges that his counsel did not object when the trial court sentenced him to fifteen months in jail, and that he was subsequently denied his right to appeal. The trial court has entered findings of fact and conclusions of law, finding that Applicant was fully aware that there are no plea agreements in the 124th District Court, and that the State may only make recommendations regarding punishment which the Court is free to reject. The trial court's findings do not indicate whether Applicant was advised that he had a right to withdraw his plea or a right to appeal, and there are no copies of the plea documents in the habeas record.
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. 1960), 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 first supplement the habeas record with copies of the plea papers, including the written admonishments given to Applicant. The trial shall make findings of fact as to whether Applicant was fully advised of his right to withdraw his plea or appeal after sentencing. 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 claim for habeas corpus relief.
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: November 26, 2008
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