Opinion
No. WR-65,032-01
Delivered: May 2, 2007. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus, In Cause No. 4024-A from The 31st District Court of Wheeler County.
ORDER
This is an application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.07. Applicant was convicted of possession of a controlled substance and sentenced, by a jury, to confinement for 99 years on October 29, 2003. Applicant's conviction and sentence was affirmed on direct appeal. Hernandez v. State, No. 07-04-00034-CR (Tex.App.-Amarillo November 2, 2004, pet. ref'd). On May 10, 2006, applicant filed this application for writ of habeas corpus. We remanded the case, directing the judge of the convicting court to make findings and return the case to this Court within 120 days. Ex parte Hernandez, WR-65,032-01 (Tex.Crim.App. September 20, 2006). By letter, dated January 4, 2007, the judge of the convicting court asked for an extension of thirty days to complete his findings. That request was granted by this Court on January 8, 2007. By letter, dated February 20, 2007, the judge of the convicting court again asked for an extension of time to complete his findings. This Court granted thirty days to return the findings to this Court. Thirty days has now passed since the end of the extension of time granted to the convicting court to return the findings to this Court. To reiterate, our order of September 20, 2006, which still stands, directed the judge of the convicting court as follows: The trial court shall make findings of fact as to whether defense counsel informed Applicant incorrectly about the applicable sentencing range for the charged offense. The court shall also make findings as to whether the State made a ten-year plea offer, and whether that offer was communicated to Applicant. The court shall make findings as to whether there is evidence in the habeas record to support Applicant's claim that he would have accepted the State's ten-year offer, had he been aware that ten years was the minimum sentence for the charged offense. The trial court shall also make findings as to whether counsel told the jury during the guilt phase of trial that "the main issue" was punishment. If counsel did make this statement the trial court shall supplement the record with any portion of the transcript which might show the context of counsel's statement. The trial court shall make findings as to whether counsel's statement, if he did make it during the guilt phase, constituted deficient performance and caused prejudice in light of Applicant's plea of not guilty. 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. The presiding judge of the 31st District Court of Wheeler County, the convicting court, shall comply with the September 20, 2006, order of this Court within 30 days from the date of this order. No further extensions will be granted. IT IS SO ORDERED THIS THE 2nd DAY OF May, 2007.