Opinion
WR-93 356-01
03-09-2022
EX PARTE MARTIN LOPEZ BARRERA, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. A-20-0903-CR IN THE 70TH DISTRICT COURT FROM ECTOR COUNTY
ORDER
PER CURIAM.
Applicant pleaded guilty to driving while intoxicated, third or more, and was sentenced to 3 years' imprisonment. 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 that his sentence was illegal because the indictment alleged, as the jurisdictional-enhancement convictions, the same prior DWI conviction cause number, in the same district court, twice. See Ex parte Rodgers, 598 S.W.3d 262, 267 (Tex. Crim. App. 2020).
Applicant also alleges that his plea was involuntary due to ineffective assistance of counsel. He avers that trial counsel allowed Applicant to plead guilty and judicially confess to the improper enhancement allegations.
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 determine whether the improperly-alleged convictions could have been replaced with properly alleged, valid enhancement convictions. Additionally, the court shall order trial counsel to respond to Applicant's claim. 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 Applicant was harmed by the improperly alleged jurisdictional-enhancement convictions. The court shall also make findings and conclusions 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.