IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 114-0633-08-A IN THE 114TH DISTRICT COURT
FROM SMITH 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 was convicted of evading arrest and sentenced to eight (8) years' imprisonment. She did not appeal her conviction.
Applicant alleges that she was confined in county jail for three months preceding trial but that counsel failed to visit her. She alleges that counsel failed to advice her pre-trial that the presiding judge did not allow plea bargain agreements. Applicant alleges that she was supposed to enter plea for probation but that counsel had forgotten discuss her case with the State. Instead of probation, Applicant was sentenced to 8 years' confinement. Applicant alleges that the 8-year sentence assessed for this evading arrest offense was illegal. She alleges that she should not have been sentenced to 8 years' confinement as she never "touched, scratched or breathed on the police officer." Applicant has alleged facts that, if true, might entitle her 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) to resolve the fact issues. The trial court shall order the Assistant District Attorney who prosecuted this case to file an affidavit addressing the following: (1) whether Applicant has previously been convicted of an evading arrest offense which would allow this offense to be elevated to a third degree felony under Tex. Pen. Code, § 38.04(2)(A) and, if so, shall identify the prior offense; and, (2) whether another person suffered serious bodily injury as a direct result of the police officer attempting to apprehend the Applicant which would allow this offense to be elevated to a third degree felony under Tex. Pen. Code, § 38.04(2)(B) and, if so, shall identify the injuries suffered by the person; (3) whether the indictment in this case contained any clerical errors and, if so, shall identify such errors; and, (4) whether the 8-year sentence assessed fell outside the applicable punishment range. The trial court shall order trial counsel to file an affidavit addressing the following: (1) whether the facts in this case supported a conviction for third degree felony evading arrest under Tex. Pen. Code, § 38.04(2)(A) or (B) and, if so, why; (2) whether the indictment contained any errors and, if so, shall identify the errors; (3) whether counsel visited Applicant in jail to discuss the case pre-trial and, if so, when; (4) whether counsel advised Applicant that she would get probation if she pleaded guilty and, if so, why; (5) whether counsel advised Applicant that the presiding judge did not accept plea bargain agreements and, if so, when; and, (6) whether counsel believes that Applicant's plea was freely and voluntarily entered.
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 her sentence was illegal. Specifically, the trial court shall make findings of fact as to whether the facts in this case supported a conviction for third degree felony evading arrest under Tex. Pen. Code, § 38.04(2)(A) or (B). The trial court shall make findings of fact as to whether the indictment in this case contained any clerical errors. The trial court shall make findings of fact as to whether 8-year sentence assessed fell outside the applicable punishment range. The trial court shall make findings of fact as to whether counsel visited Applicant in jail to discuss the case pre-trial. The trial court shall make findings of fact as to whether counsel advised Applicant that she would get probation if she pleaded guilty. The trial court shall make findings of fact as to whether counsel advised Applicant pre-trial that the presiding judge did not accept plea bargain agreements. The trial court shall make findings of fact as to whether counsel believes that Applicant freely and voluntarily entered her plea. 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.
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, copies of the plea papers in this cause including the trial court's written admonishments, any written waivers, and Applicant's judicial confession, a transcription of the court reporter's notes from the plea 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. Any extensions of time shall be obtained from this Court.
Filed: May 20, 2009
Do not publish