Birl, Lena M. ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-23,628-03

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EX PARTE LENA M. BIRL, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CF-05-084 IN THE 76TH DISTRICT COURT FROM CAMP 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 burglary of habitation and sentenced to ten (10) years' imprisonment. She did not appeal her conviction.

Applicant alleges that her guilty plea was involuntary because of counsel's ineffective assistance. Specifically, she alleges that counsel failed to investigate and interview the complaining witness. She also alleges that counsel failed to advise her that she had a right to go to trial.

Applicant has alleged facts that, if true, might entitle her 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. 1960), 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) to resolve the fact issues. In the appropriate case, the trial court may rely on its personal recollection. Id. The trial court shall order trial counsel to file an affidavit addressing the following issues: (1) whether counsel advised Applicant to plead guilty and, if so, why counsel believed that pleading guilty was in Applicant's best interest; (2) whether counsel investigated and interviewed the complaining witness; and, (3) whether counsel advised Applicant that she had a right to go to trial.

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 as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. Specifically, the trial court shall make findings of fact as to whether counsel advised Applicant to plead guilty and, if so, why counsel believed that pleading guilty was in Applicant's best interest. The trial court shall make findings of fact as to whether counsel investigated and interviewed the complaining witness. The trial court shall make findings of fact as to whether counsel advised Applicant that she had a right to go to trial. 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: April 29, 2009

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