Opinion
No. WR-71,701-02
Filed: March 3, 2010. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus. Cause No. 5322 in the 33rd District Court. Appealed from San Saba 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of manufacture of a controlled substance and sentenced to thirty years' imprisonment. He did not appeal his conviction. Applicant contends, among other things, that trial counsel rendered ineffective assistance because counsel advised Applicant that if he did not plead guilty, he would be sentenced to at least forty years' imprisonment. On June 10, 2009, we remanded this application for findings of fact and conclusions of law. On remand, the trial court made findings of fact and concluded that trial counsel's advice was not deficient. We believe that the record is not sufficient to resolve Applicant's claim. The proper punishment range was five to ninety-nine years or life. Tex. Health Safety Code § 481.112(d); Tex. Pen. Code § 12.32. 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 trial counsel to file an affidavit in response to Applicant's claim. 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04. The trial court shall make further findings of fact and conclusions of law as to whether trial counsel rendered deficient performance and, if so, whether Applicant was prejudiced. The trial court shall also make any other findings and conclusions 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.
It also appears from the original plea record that Applicant was admonished that the punishment range was two to twenty years.