Opinion
No. WR-63,253-01 and 02
February 1, 2006. DO NOT PUBLISH.
On Applications for a Writ of Habeas Corpus, Cause Nos. 35,276 and 35,277 in the 400th Judicial District Court, Fort Bend County.
ORDER
These are applications for a writ of habeas corpus which were transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offenses of evading arrest and arson, and punishment was assessed at confinement for ten years and fifteen years, respectively. Applicant's convictions were affirmed on appeal. Milne v. State No. 04-02-00737-CR (Tex.App.-San Antonio, delivered July 23, 2003, pet. ref'd), and Milne v. State, No. 04-02-00738-CR (Tex.App.-San Antonio, delivered July 23, 2003, no pet.). Applicant contends that his pleas of guilty were rendered involuntary due to false promises made by counsel, and that counsel rendered ineffective assistance in these causes. The trial court has entered orders stating that "no issues of fact and questions of law that need to be resolved regarding and Applicant's writ is denied". The trial court's orders do not sufficiently resolve the issues raised by the Applicant. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order affidavits, depositions, or interrogatories from counsel, or it may order a hearing. In the appropriate case the trial court may also rely on its personal recollection. If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing. Following receipt of additional information, the trial court shall make findings of fact as to whether Applicant's pleas were rendered involuntary due to false promises made by counsel, and whether counsel rendered ineffective assistance in these causes. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the applications for writ of habeas corpus. Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.Crim.App. 1960), these applications for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. 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. IT IS SO ORDERED.
In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.
Any extensions of this time period should be obtained from this Court.