IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 07F0171-202B IN THE 202ND JUDICIAL DISTRICT COURT
FROM BOWIE 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 four years' imprisonment. He did not appeal his conviction.
On October 7, 2009, this Court remanded to the trial court to obtain affidavits, findings, and supplementation of the habeas record to address Applicant's contention that his trial counsel rendered ineffective assistance because counsel failed to investigate and erroneously advised him to plead guilty to an offense that was not supported by the evidence. On remand, the trial court has obtained affidavits from trial counsel and from TDCJ, and has provided a copy of the lab report showing the quantity of the controlled substance possessed by Applicant. However, this Court's remand order also required supplementation of the record with copies of the plea documents, including any written admonishments, waivers and stipulations, and plea agreements. The habeas record has not been supplemented with these documents, and the trial court has not made findings as to whether Applicant was correctly admonished prior to the entry of the plea. Furthermore, the record does not contain a copy of the charging instrument in this case.
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 supplement the habeas record with copies of the charging document and the plea documents, including any written admonishments, waivers and stipulations, and plea agreements. The trial court shall make findings as to whether Applicant was admonished as to the nature of the charge, the applicable punishment range, the rights he was waiving, and the consequences of his plea.
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: February 3, 2010
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