IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 07-0446-CR-A IN THE 25TH JUDICIAL DISTRICT COURT
FROM GUADALUPE 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 possession of a controlled substance, and was sentenced to ten years' imprisonment. He did not appeal his conviction.
Applicant contends, inter alia, that his plea was involuntary because counsel promised him that he would get probation in exchange for his guilty plea. Applicant was originally charged with possession with intent to deliver a controlled substance, with a prior felony conviction alleged as an enhancement. The plea agreement indicates that the Applicant pleaded guilty to the lesser included offense of possession of a controlled substance, enhanced by the prior felony conviction, and the State agreed to recommend a "cap" of ten years. The plea agreement is silent as to probation, and the habeas record does not contain a motion for probation. 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 shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. 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 as to whether counsel advised Applicant that he would receive probation if he pleaded guilty in this case. The trial court shall make findings as to whether a motion for probation was filed prior to the entry of the plea, and as to whether defense counsel argued for probation. The trial court shall make findings of fact and conclusions of law as to whether Applicant was properly advised of the nature of the charges, the applicable punishment range, the rights he was waiving, and the consequences of his 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 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: January 14, 2009
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