Rodriguez, Ricardo Flores III ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-70,597-01

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EX PARTE RICARDO FLORES RODRIGUEZ III, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR-3355-06-G IN THE 370^TH DISTRICT COURT FROM HIDALGO 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of robbery and sentenced to ten years' imprisonment. He did not appeal his conviction.

Applicant contends, among other things, that the charges in this cause were dismissed and that he should not be serving a sentence in the Texas Department of Criminal Justice-Correctional Institutions Division. According to the record, Applicant filed a motion to withdraw his guilty plea. The trial court orally granted his motion but did not sign a written order. The trial court then granted the State's motion to dismiss the charges, but because the order granting Applicant's motion to withdraw his plea was not signed, the trial court had no authority to dismiss the charges.

The trial court has made findings of fact and conclusions of law and recommends that we vacate the judgment and dismiss the charges with prejudice. We believe that the record is not sufficient to resolve Applicant's claim. Accordingly, the trial court shall provide Applicant's trial counsel with the opportunity to respond. 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make further findings of fact as to whether counsel failed to ensure that the trial court signed the written order he prepared. The trial court shall then determine whether counsel's performance was deficient and, if so, whether Applicant was prejudiced. 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. 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 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: October 1, 2008

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