Opinion
NO. WR-86,803-01 NO. WR-86,803-02
10-04-2017
EX PARTE JORGE CORDERO-VARELA, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 114-0766-12-A AND 114-0767-12-A IN THE 114TH DISTRICT COURT FROM SMITH COUNTY
Per curiam. 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered open pleas of guilty to one charge of intoxication manslaughter and one charge of intoxication assault, and was sentenced to twenty years' imprisonment for the intoxication manslaughter charge, and ten years' imprisonment for the intoxication assault charge, to run consecutively. The Twelfth Court of Appeals dismissed his appeals for want of jurisdiction. Cordero-Varela v. State, Nos. 12-15-00213-CR and 12-15-00214-CR (Tex. App. — Tyler, Sept. 30, 2015).
Applicant contends, among other things, that his guilty pleas were not knowingly and voluntarily entered because he relied on trial counsel's erroneous advice regarding the availability of community supervision. The trial court conducted a habeas hearing at which Applicant's trial counsel testified that he did not promise Applicant that he would received community supervision in exchange for his guilty pleas. However, the record does not indicate whether trial counsel ever correctly advised Applicant regarding the availability of community supervision, and more specifically, whether Applicant was ever advised that the only way he could obtain community supervision for these charges was to go to trial and elect to be sentenced by the jury.
This Court has considered Applicant's other grounds and finds them to be without merit.
Applicant has alleged facts that, if true, might entitle him 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 claim of ineffective assistance of counsel. Specifically, trial counsel shall state whether he advised Applicant that he could not receive community supervision or deferred adjudication from the trial court, but could only receive community supervision from a jury. 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 as to whether, had Applicant been correctly advised that he could only receive community supervision from a jury, he would have insisted on a jury assessment of punishment. 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 claims for habeas corpus relief.
These applications 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: October 4, 2017
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