Opinion
NO. WR-91,871-01
11-04-2020
EX PARTE SIMON GONZALES AGUERO, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 27532-A(1) IN THE 42ND DISTRICT COURT FROM TAYLOR COUNTY
Per curiam. ORDER
Applicant pleaded guilty to possession with intent to deliver a controlled substance and was sentenced to twenty years' imprisonment. He did not appeal his conviction. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.
Applicant contends, among other things, that his trial counsel was ineffective and that his plea was involuntary. Applicant alleges that trial counsel had a conflict of interest because he also represented Applicant's co-defendant in this matter. Applicant alleges that trial counsel failed to file a motion to suppress evidence or seek to have the substance allegedly possessed by Applicant tested by an independent expert. Applicant alleges that trial counsel failed to seek out and interview witnesses. Applicant alleges that trial counsel failed to advise him about his options with regard to taking the case to trial or pleading guilty.
This Court has reviewed Applicant's other claims and finds them to be without merit. --------
Applicant has alleged facts that, if true, might entitle him to relief. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX. CODE CRIM. PROC. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant's claims. In developing the record, the trial court may use any means set out in Article 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 wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX. CODE CRIM. PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant would have insisted on a trial but for counsel's alleged deficient performance. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX. R. APP. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. Filed: November 4, 2020
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