IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-85,159-01
EX PARTE EZEQUIEL NEVELLY RUIZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W09-23496-M(A) IN THE 194TH DISTRICT COURT
FROM DALLAS COUNTY
Per curiam. ALCALA , J., filed a concurring opinion in which JOHNSON , J., joined.
YEARY , J., filed a concurring opinion in which KEASLER and HERVEY , JJ., joined.
ORDER
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 originally pleaded guilty to
kidnapping in exchange for six years’ deferred adjudication community supervision. His guilt was
later adjudicated and he was sentenced to ten years’ imprisonment, but he was granted “shock”
probation pursuant to Article 42.12, Section 6(a) of the Texas Code of Criminal Procedure. His
“shock” probation was eventually revoked and he was sentenced to ten years’ imprisonment.
Applicant contends, among other things, that his counsel rendered ineffective assistance for
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for various reasons. Applicant alleges that his plea (presumably his original plea of guilty) was not
knowingly and voluntarily entered because he was never advised of the difference between deferred
adjudication and “straight” probation. He alleges that had he known that he could receive a sentence
longer than the original period of deferred adjudication, he would have accepted an earlier offer for
the minimum sentence of imprisonment instead of deferred adjudication. The plea papers signed
by Applicant indicate that he was advised that if he received deferred adjudication and was later
adjudicated guilty, the full range of punishment would be available to the trial court. However, there
is nothing in the habeas record to show whether a plea offer involving the minimum prison time was
offered and rejected by Applicant, and if so, whether he was advised by counsel to accept or reject
the offer.
Applicant alleges that there was a cell phone containing text messages from the complainant
asking Applicant to pick her up, and (according to Applicant) proving that he did not kidnap her.
However, the cell phone could not be found prior to trial, and Applicant therefore “began
considering plea bargains.” Applicant alleges that years later the cell phone was found among his
stored property, and that he now has newly-available evidence of actual innocence.
Applicant also alleges that his counsel at sentencing was substituted in at the last minute, and
was unprepared for the sentencing proceeding. Applicant alleges that he was denied his right to
appeal, because although he expressed a desire to appeal after sentencing, his attorney did not file
notice of appeal on his behalf.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999); Ex parte
Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). In these circumstances, additional facts are needed.
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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 Applicant’s original plea
counsel and his counsel at sentencing afer revocation of “shock” probation to respond to Applicant’s
claims of ineffective assistance of counsel.
Applicant’s original plea counsel shall state whether Applicant was advised of the difference
between deferred adjudication community supervision and “straight” community supervision. Plea
counsel shall state whether the State extended an offer at any time involving the minimum prison
sentence, and if so, whether counsel advised Applicant to accept or reject such offer. Plea counsel
shall also state whether Applicant ever advised counsel of the existence of potentially exculpatory
text messages, and if so, whether counsel took steps to investigate the existence of such text
messages.
Applicant’s counsel at sentencing after revocation of “shock” probation shall state whether
he had an opportunity to meet with Applicant to discuss the proceeding, and whether he was
prepared for the revocation and sentencing. Counsel shall state whether Applicant was advised of
his right to appeal, and if so, whether Applicant expressed a desire to appeal. If Applicant did
express a desire to appeal, counsel shall state whether he filed notice of appeal on Applicant’s behalf
or advised the sentencing court of Applicant’s desire to appeal, and asked to withdraw from the
representation.
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.
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The trial court shall first supplement the habeas record with a copy of the certification of the
defendant’s right to appeal in this case. The trial court shall make findings of fact and conclusions
of law as to whether the performance of Applicant’s original plea counsel was deficient and, if so,
whether counsel’s deficient performance prejudiced Applicant. The trial court shall make findings
of fact as to whether exculpatory evidence in the form of text messages on Applicant’s cell phone
has been discovered, and if so, when. The trial court shall make findings of fact as to whether the
performance of Applicant’s counsel at the revocation of his “shock” probation and sentencing was
deficient and, if so, whether counsel’s deficient performance prejudiced Applicant. The trial court
shall make findings as to whether Applicant was denied his right to a meaningful appeal because
Applicant’s sentencing counsel failed to timely file a notice of appeal. 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 claims 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: June 29, 2016
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