Lopez, Guadalupe ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-78,099-01

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EX PARTE GUADALUPE LOPEZ, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 10-10-06789-MCRAJA IN THE 365^TH DISTRICT COURT FROM MAVERICK 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 possession of marihuana and sentenced to ten years' imprisonment. He did not appeal his conviction.

Applicant contends that his plea was involuntary because he was not released to community supervision after spending 180 days in prison. Applicant also alleges counsel was ineffective for not securing his presence at the hearing held under Section 6 of Code of Criminal Procedure Article 42.12. Applicant has alleged facts that, if true, might entitle him to relief. The trial court entered findings concluding that "shock" probation was not part of the plea agreement, and Applicant was ineligible for "shock" probation in any event. The habeas record contains neither docket sheets nor a copy of the plea agreement. Furthermore, the judgment's recitations of the terms of the plea agreement suggest that consideration of "shock" probation was a part of the plea agreement. 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 trial counsel to respond to Applicant's claim that ineffective assistance of counsel caused his plea to be involuntary. 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.

It appears that Applicant is represented by counsel. If the trial court determines he is not represented by counsel and elects to hold a hearing, it shall then 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. The trial court shall make specific findings addressing whether Applicant's plea was entered with the understanding that he was eligible for "shock" probation. The trial court shall make specific findings detailing how Applicant was advised by the court and counsel as to his eligibility for "shock" probation at the time of his plea. The trial court has found that Applicant was ineligible for consideration of community supervision under Section 6 of Article 42.12 of the Code of Criminal Procedure. The trial court shall make specific findings as to whether Applicant was incarcerated in the penitentiary pursuant to his alleged prior conviction. 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. 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 forwarded to this Court within 120 days of the date of this order. The supplemental transcript shall also contain any plea papers and docket sheets from this cause as well as documents necessary to support any finding that Applicant was ineligible for consideration of community supervision under Section 6 of Article 42.12 of the Code of Criminal Procedure. Any extensions of time shall be obtained from this Court.

Filed: October 31, 2012

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