DocketNumber： WR-74,865-02
Filed Date： 11/24/2010
Status： Precedential
Modified Date： 9/16/2015
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. 04-6-7037, 04-9-7101 & 04-9-7100
IN THE 24TH DISTRICT COURT
FROM JACKSON COUNTY
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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty and was convicted of aggravated perjury and two charges of bail jumping and failure to appear. He was sentenced to twenty years' imprisonment on each charge, all of which were ordered to run consecutive to a prior Jackson County conviction. He did not appeal his convictions.
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance that made his guilty pleas involuntary. Applicant contends that counsel was ineffective because he advised Applicant that his sentences would run concurrent with a federal sentence that he was serving at the time of his guilty pleas. Applicant also contends that counsel did not advise applicant that his sentences could be ordered to run consecutive to other Texas sentences. Additionally, Applicant contends that counsel did not advise him about his rights to appeal or any waiver of appeal that would be required by a guilty plea. Applicant also contends that counsel, who was retained to represent him on a prior case, told him that he did not represent him in these cases but did not request appointment of counsel for applicant.
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). The habeas record contains no plea agreement paperwork, no response from the State, no response from counsel, and no findings or conclusions from the trial court. 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 obtain an answer from Applicant's trial counsel, responding to Applicant's claims of ineffective assistance of counsel. 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 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 determine whether applicant was advised that his sentences in these causes would run concurrently with his federal sentence. If counsel advised him that the sentences would run concurrently with the federal sentence, the trial court shall make findings as to how applicant's sentences are being calculated and whether they are running concurrently with his federal sentence. The trial court shall also make specific findings as to whether counsel advised Applicant of his appellate rights, whether counsel advised him that his sentences could be ordered to run consecutive to other sentences, and whether counsel told Applicant that he "no longer represented him in this case and that any function performed on his behalf was merely a professional courtesy" to the District Attorney. If the trial court finds that counsel made this representation, the court shall make specific findings as to whether applicant was deprived the right to counsel during these proceedings. The docket sheets suggest that the "plea memorandum" contained applicant's "waivers of rights" and the court's admonishments. If the court finds that counsel did not advise applicant of his appellate rights and any necessary waivers of those rights, the court shall make findings as to whether applicant was admonished by the court under Article 26.13 of the Code of Criminal Procedure. 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 claims for habeas corpus relief.
These applications 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, any and all documents relating to any plea agreements, and any other court documents necessary to the disposition of the applications, 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: November 24, 2010
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