IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 07-03-06016-MCRAJA IN THE 365TH DISTRICT COURT
FROM MAVERICK 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 burglary of a habitation and sentenced to nine years' imprisonment. He did not appeal his conviction.
This writ application was first remanded on May 5, 2010 to determine whether Applicant's plea was involuntary because he was not bench-warranted back to Maverick County in time to be considered for "shock probation." Tex. Code Crim. Proc. art. 42.12 § 6. After remand, the trial court issued findings of fact and conclusions of law, determining that Applicant's plea of true to a motion to revoke community supervision was involuntary because he was not considered for "shock probation," as contemplated by the judgment and the agreement with the State. However, the defendant who bargains for punishment at a community supervision revocation proceeding is not entitled to specific performance of his agreement when it is not upheld. See Gutierrez v. State, 108 S.W.3d 304, 309-10 (Tex. Crim. App. 2003) (holding that, because the legislature has not authorized binding plea agreements in the context of revocation proceedings, the defendant has no right to withdraw a plea of true when the trial judge is unwilling to follow a plea agreement).
Applicant's pleadings allege that counsel erred by not filing a timely motion to have applicant bench-warranted back to Maverick County while the trial court still had jurisdiction to order him continued on community supervision.
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 obtain a response from Applicant's trial counsel concerning 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 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 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: September 29, 2010
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