Barrera, Daniel Saucedo ( 2010 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

---

  NO. WR-74,898-01

---

EX PARTE DANIEL SAUCEDO BARRERA, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 96-CR-556-A IN THE 107TH DISTRICT COURT

FROM CAMERON COUNTY

---

           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 delivery of marihuana and sentenced to four years’ imprisonment. He did not appeal his conviction.

            Applicant contends that before pleading guilty he asked counsel whether he might be deported and counsel responded, “Nah don’t worry about it.” The trial court made findings of fact and conclusions of law and recommended that we deny relief. We believe that the record is not adequate to resolve Applicant’s claim.

            Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Padilla v. Kentucky, 559 U.S. ___ (2010). 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 shall order counsel to respond to Applicant’s claim. 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

            The trial court shall first make findings of fact as to whether Applicant is suffering collateral consequences from this conviction. Tex. Code Crim. Proc. art. 11.07, § 3(c). If so, the trial court shall then make findings of fact as to whether counsel advised Applicant that if he pleaded guilty he would not be deported. 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: December 15, 2010

Do not publish