DocketNumber： WR-64,897-01
Filed Date： 6/21/2006
Status： Precedential
Modified Date： 9/15/2015
FROM CAUSE NO. 07656-A IN THE 90TH JUDICIAL DISTRICT COURT OF YOUNG COUNTY
Per curiam.
This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant originally pleaded guilty to the offense of delivery of a controlled substance in a drug free zone, in exchange for six years of deferred adjudication community supervision. His guilt was later adjudicated and his community supervision revoked pursuant to a plea of "true" to the allegations in the State's motion to adjudicate, and punishment was assessed at four years' confinement. No direct appeal was taken.
Applicant contends that his plea of true to the allegations in the State's motion to adjudicate was not knowingly and voluntarily entered, because both his own counsel and the prosecutor assured him that he would be eligible for parole after serving eighteen to twenty-four months in prison. Applicant further alleges that his counsel at the original plea proceeding was ineffective for failing to discover that the playground alleged as the basis for the drug free zone charge was not constructed until well after the offense date.
The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from defense counsel and the prosecutor, or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection.
If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.
Following receipt of additional information, the trial court shall make findings of fact as to whether Applicant entered into a plea agreement with the State at the adjudication of guilt, and if so, whether Applicant's parole eligibility was an affirmative element of the plea bargain agreement. If there was a plea bargain agreement, the trial court shall supplement the habeas record with copies of any written documents or affidavits reflecting the terms of such plea bargain agreement. The trial court shall also make findings as to whether the playground alleged as the basis for the drug free zone charge was in existence at the time of Applicant's offense. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.
Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within ninety days of the date of this order. (1) 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 one hundred and twenty days of the date of this order. (2)
IT IS SO ORDERED THIS THE TWENTY-FIRST DAY OF JUNE, 2006.
EN BANC
DO NOT PUBLISH
1. In the event any continuances are granted, copies of the order granting the continuance
shall be provided to this Court.
2.