Opinion
WR-90 432-02
03-30-2022
EX PARTE LISSETTE FUENTES, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 16-CRS-318-B IN THE 229TH DISTRICT COURT FROM STARR COUNTY
ORDER
Per curiam.
Applicant entered an open plea of guilty to intoxication manslaughter (x2), intoxication assault, and aggravated assault (x3) and was sentenced to twenty years' imprisonment in counts one and two, and ten years' imprisonment in counts three through six. Count two was set to run consecutively to count one, and count three was set to run consecutively to count two. The Fourth Court of Appeals dismissed her appeal for want of jurisdiction. Fuentes v. State, No. 04-18-00704-CR (Tex. App.-San Antonio Dec. 27, 2018) (not designated for publication). 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 her plea was involuntary because of trial counsel's failure to give competent advice and failure to review the evidence with her. Trial counsel has submitted an affidavit in response to Applicant's claims. However, that affidavit is not sufficient to fully address Applicant's claim. Applicant has alleged facts that, if true, might entitle her to relief. Brady v. United States, 397 U.S. 742 (1970). Accordingly, the record should be developed further. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). Trial counsel shall submit a second affidavit detailing the advice he gave to Applicant with regard to the possible range of punishment, including whether the sentences could be run consecutively, the evidence against her, and the potential use of any prior bad acts. 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 her 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 supplement the record with any documents or evidence considered in reaching its conclusion that Applicant's plea was involuntary, including the Reporter's Record from the hearing on the Motion for New Trial. If the trial court's conclusion was based solely on a credibility determination, the trial court shall make specific findings of fact reflecting the basis for that determination. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claim.
The trial court shall supplement the 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.