Girtz, Billy Randall ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-34,894-03

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EX PARTE BILLY RANDALL GIRTZ, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 21869 IN THE 42ND DISTRICT COURT FROM TAYLOR COUNTY

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   Per curiam. 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 was convicted of forgery, enhanced, and sentenced to three (3) years' imprisonment. He did not appeal his conviction.

Applicant contends that his plea was involuntary or that the plea agreement was breached because he was promised that if he pleaded guilty to a second-degree felony offense, he would be eligible for release sooner and would serve his sentence under better prison conditions than if he pleaded guilty to a state jail felony. Specifically, he asserts that he received alternative plea offers: (1) plead guilty to a state jail felony and receive a sentence of eighteen (18) months; or (2) plead guilty to a second-degree felony and receive a sentence of three (3) years. Applicant urges that he chose to plead guilty to a second-degree felony and receive a three-year sentence because he was promised that he would accrue good time against his sentence, such that he would be immediately eligible for parole release and would discharge his sentence sooner than if he were serving an eighteen-month sentence for a state jail felony, and that the conditions in a Correctional Institutions Division facility would be less violent than the conditions in a state jail facility. Applicant contends that he would have pleaded guilty to the state jail felony and received the less severe sentence, had he known that he would have to serve his sentence for the second-degree felony in a state jail facility where he has been denied the opportunity to accrue good time. 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. 1997), the trial court is the appropriate forum for findings of fact. 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 make findings of fact and conclusions of law in regard to applicant's claim that his plea was involuntary or that the plea agreement was breached. See Ex parte Moussazadeh, 64 S.W.3d 404 (Tex. Crim. App. 2001); Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997). 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 twenty (120) days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: June 28, 2006

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