IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. B-07-2141-0-CR-B IN THE 156TH DISTRICT COURT
FROM BEE 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of driving while intoxicated with a passenger under the age of 15 and sentenced to five years' imprisonment in each case, to run consecutive to two other cases. He did not appeal his convictions.
Applicant contends that his sentences are illegal because they are outside of the appropriate range of punishment, that his plea was involuntary, and that his trial counsel rendered ineffective assistance because counsel allowed applicant to plead true to improper enhancement allegations. The habeas record does not contain a response from the State or findings from the trial court.
Applicant was charged by information with two counts of driving while intoxicated with a passenger under the age of 15, a state jail felony. Tex. Pen. Code § 49.045 (2007). The information contained one enhancement paragraph, which alleged a prior manslaughter conviction from 2005. The habeas record suggests that Applicant was serving a community supervision sentence for the manslaughter conviction and that he was revoked and sentenced to prison time on the same day he was sentenced in the instant cases. Applicant alleges he had no other prior, final convictions available to enhance the sentences in these cases. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex Parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006). 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 order trial counsel 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).
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 as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall determine whether there is any support in law or fact for applicant's sentence of five years' imprisonment in these causes. If the trial court determines that these sentences are within the applicable range of punishment, it shall make specific findings and conclusions in support of the finding. 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: August 22, 2012
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