Opinion
No. WR-73,187-01
Filed: March 3, 2010. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus. Cause No. 1141790D in the 372nd District Court. Appealed from Tarrant County.
ORDER
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of failure to comply with sexual offender registration requirements and sentenced to ten years' imprisonment. He did not appeal his conviction. Applicant contends that his trial counsel rendered ineffective assistance by failing to properly advise Applicant as to the proper range of punishment. Specifically, he claims that his attorney advised him that he faced a second-degree felony punishment range of two to twenty years because of a prior conviction for injury to a child used for enhancement, when in fact, he should have only faced a third-degree felony punishment range of two to ten years because the enhancement paragraph was invalid. Applicant bases this argument on his interpretation of Texas Code of Criminal Procedure Article 62.102(c) which provides that a prior registration violation is the means by which to enhance punishment for the offense of failure to comply with sexual offender registration requirements. See Tex. Code Crim. Pro Art. 62.102(c). 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). 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 Applicant's trial counsel to file an affidavit responding to Applicant's claim of ineffective assistance of counsel. In addition, 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. 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. 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, 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.