IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. CR-28968-A IN THE 217TH JUDICIAL DISTRICT COURT
FROM ANGELINA 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 in a drug free zone, and was sentenced to eight years' imprisonment. He did not appeal his conviction.
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to advise him of the effect of the drug free zone allegation on his parole eligibility, and in fact affirmatively mis-advised him that he would be "home in two years." Because there are no copies of the plea documents in the record, it cannot be determined whether parole eligibility was an affirmative element of the plea agreement, or whether Applicant was correctly admonished regarding the consequences of his plea.
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 first supplement the habeas record with copies of the plea documents, including the admonishments, stipulations and waivers, any plea agreement, and the evidence, if any, introduced to support the plea. The trial court shall then make findings of fact as to whether Applicant was advised of the effect of the drug free zone allegation, and as to whether parole eligibility was an affirmative element of the plea agreement. The trial court shall make findings as to whether counsel advised Applicant that he would be "home in two years" pursuant to the plea agreement. The trial court shall make findings 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 ninety (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 one hundred and twenty (120) days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: February 9, 2011
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