Opinion
NO. WR-85,106-01
09-21-2016
EX PARTE BETTIE RUTH RAMIREZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 10-09 IN THE 25TH DISTRICT COURT FROM GONZALES COUNTY
Per curiam. ALCALA, J., filed a concurring opinion. 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 murder, serious bodily injury to a child, and injury to a child, and sentenced to life in prison for the murder charge, ninety-nine years' imprisonment for the serious bodily injury to a child charge, and ten years' imprisonment for the injury to a child charge, to be served concurrently. The Thirteenth Court of Appeals affirmed her conviction. Ramirez v. State, No. 13-09-00073-CR (Tex. App. —Corpus Christi-Edinburg, Aug. 31, 2010) (not designated for publication).
Applicant contends, among other things, that her open plea of guilty to the serious bodily injury of a child count (Count II) was not knowingly and voluntarily entered, because it was done on the erroneous advice of trial counsel. Applicant alleges that trial counsel coerced her into pleading guilty to the injury to a child count by threatening to withdraw from the representation if she did not do so. Applicant alleges that the guilty plea was entered without any consideration in the form of lenient sentencing or other concession from the State. Applicant also alleges that her conviction of both injury to a child and murder involving the same victim constitute improper double punishment for the same act or omission. Although the appellate opinion suggests that Applicant pleaded guilty to causing serious bodily injury to a different child, the jury was instructed to find Applicant guilty of causing serious bodily injury by failing to obtain and provide proper medical care for the same child she was charged with murdering.
This Court has considered Applicant's other claims and finds them to be without merit.
Applicant has alleged facts that, if true, might entitle her to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 respond to Applicant's claims of involuntary plea and ineffective assistance of counsel. Specifically, trial counsel shall state whether she advised Applicant to enter an open plea of guilty to Count II, Paragraph C of the indictment, and if so, why. Trial counsel shall also state whether counsel considered making a special plea of prior jeopardy or objecting on the basis of double jeopardy when Applicant was found guilty of murdering the same child, and if not, why not. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 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 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 her plea was involuntary. The trial court shall also make findings of fact and conclusions of law in regard to Applicant's claim that her convictions violate double jeopardy. The trial court shall also make findings of fact and conclusions of law as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court. Filed: September 21, 2016
Do not publish