Opinion
NO. WR-66,450-01.
Filed: December 20, 2006. DO NOT PUBLISH.
On Application For A Writ Of Habeas Corpus, Cause No. 17,929-2003 In The 402nd Judicial District Court From Wood 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 pleaded guilty to aggravated assault and was sentenced to ten years' imprisonment. His appeal was dismissed for want of jurisdiction Johnson v. State, No. 12-06-00149-CR (Tex.App.-Tyler, May 17, 2006, no pet.) Applicant contends that his plea was involuntary because counsel advised him that he would receive shock probation if he accepted the State's plea offer. Applicant alleges that counsel knew or should have known that he was ineligible for shock probation because of a prior conviction. 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. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall give trial counsel an opportunity to file an affidavit responding to Applicant's claims. The affidavit shall state whether counsel advised Applicant that he would receive shock probation if he accepted the State's ten-year plea offer. If counsel advised Applicant that he was eligible for shock probation, the affidavit shall state the basis for counsel's conclusion that Applicant was eligible for shock probation. If Applicant was ineligible for shock probation as a result of a prior conviction, counsel shall state whether he was aware of this prior conviction, and if so, from what source. The affidavit shall also state whether it was counsel's belief that Applicant would have pleaded guilty in exchange for the State's ten-year offer if Applicant had been aware that he could not receive shock probation. 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 and conclusions of law in regard to Applicant's claim that his plea was involuntary. First, the trial court shall make findings as to the basis for its conclusion that Applicant was not eligible for shock probation. If the conclusion was based on the fact that Applicant had a prior conviction which rendered him ineligible, the court shall supplement the record with a copy of the judgment in the prior conviction. The trial court shall also make findings as to whether shock probation was an element of the plea agreement, and shall supplement the record with copies of the plea papers in this cause. 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.