Bowling, George Robert ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-63,500-01

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EX PARTE GEORGE ROBERT BOWLING, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 12,141 IN THE 21^ST JUDICIAL DISTRICT COURT

WASHINGTON COUNTY

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Per curiam.

O R D E R  

   This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art 11.07. Applicant was convicted of aggravated sexual assault, and punishment was assessed at thirty-five (35) years' confinement. No direct appeal was taken.

Applicant contends that his plea of guilty was involuntary because he received ineffective assistance of counsel, who advised him that he would receive two life sentences if he did not accept the State's plea offer.

The trial court has entered an order concluding that there is ample evidence in the record to rule on the relief sought. However, we disagree. Applicant has stated facts requiring resolution. Because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution. The trial court shall resolve the factual issues as set out in Tex. Code Crim. Proc. art 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from counsel, or it may hold a hearing. In the appropriate case, the trial court may rely on personal recollection.

If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.

Following receipt of additional information, the trial court shall make findings of fact as to whether counsel advised Applicant that he would receive two life sentences if he did not accept the State's plea offer, and whether such advice rendered Applicant's plea involuntary. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.

The trial court shall supplement the habeas record with copies of all documents upon which its findings are based, including copies of the judicial confession and waiver, judicial admonishments, plea agreement, excerpts of the trial transcript, affidavits from counsel, and any other relevant documents.

Because this Court does not hear evidence, Ex Parte Rodriguez, 169 Tex.Cr.R. 367, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within ninety (90) days of the date of this order. ⁽¹⁾ A supplemental transcript containing all affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within one hundred twenty (120) days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 1^ST day of MARCH, 2006.

EN BANC

DO NOT PUBLISH

1. In the event any continuances are granted, copies of the order granting the continuance shall be provided to this Court.

2. Any extensions of this time period shall be obtained from this Court.