Opinion
NO. WR-75,210-06
05-03-2017
EX PARTE GEORGE MICHAEL CARTER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR10-0193-01 IN THE 43rd DISTRICT COURT FROM PARKER 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 driving while intoxicated-habitual offender and sentenced to life imprisonment. The Second Court of Appeals affirmed his conviction. Carter v. State, No. 02-10-00503-CR (Tex. App.—Fort Worth Jan. 26, 2012) (not designated for publication).
Applicant contends, inter alia, his plea was involuntary because counsel erroneously advised him that his punishment range could not be enhanced beyond that of a second degree felony. Specifically, Applicant contends that, after a motion to quash was denied by the trial court, the State offered Applicant a plea offer of 40 years in prison, counsel again erroneously advised him the punishment range could not legally be enhanced beyond that of a second degree felony and, as a result of that erroneous advice, he entered an open plea of guilty and elected to have the jury assess punishment in this case.
The judgment reflects that Applicant pled not true to the enhancement paragraphs set out in the indictment. --------
Applicant has alleged facts that, if true, might entitle him to relief. 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 may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
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. If the trial court finds that counsel gave erroneous advice as claimed by the Applicant, the trial court shall also make findings of fact regarding whether there is a reasonable probability that: (1) Applicant would have accepted the offer if counsel had not given ineffective assistance; (2) the prosecution would not have withdrawn the offer; and (3) the trial court would not have refused to accept the plea bargain. Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013). 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 must be requested by the trial court and shall be obtained from this Court. Filed: May 3, 2017
Do not publish