Opinion
NO. WR-87,375-01
09-20-2017
EX PARTE REFUGIO DELACRUZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W15-75563-N (A) IN THE 195TH DISTRICT COURT FROM DALLAS 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 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 and sentenced to twenty-five years' imprisonment. He did not appeal his conviction.
Applicant complains that his plea was not voluntary due to trial counsel's ineffective representation. Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997); Strickland v. Washington, 466 U.S. 668 (1984). Trial counsel has responded in an affidavit.
Applicant contends that he shot and killed the victim in self-defense when the victim and his friend attacked and beat Applicant during an argument. He appears to claim that the evidence showed he is handicapped and was severely beaten and that the victim had a violent criminal history and initiated the attack. He says counsel told him if he went to trial and lost, the judge could give him the death penalty. He says counsel further told him that the "chances of winning in the [trial court were] slim to none due to the fact that the Judge [] frowned upon cases involving murder."
Counsel states, "[Applicant] indicated that he feared the victim but could not articulate any fact that would constitute a defense or justification. ... [He] could not provide the name of his employer or his place of employment, nor could he give us any person who could be a witness for him." Even so, counsel had an investigator appointed, but the investigation found nothing because all the witnesses, allegedly fearing arrest and deportation, fled within days of the killing. Applicant provides no further evidence in habeas to support his self-defense claim.
Counsel explains that the original offer was 60 years, and the case was set for a jury trial. It appears that the State offered 25 years on the morning of trial, which Applicant decided to accept. According to counsel, "He indicated to me that he was afraid to go to trial and wanted the 25 year offer." Counsel's affidavit, however, does not address the alleged exculpatory and/or mitigating evidence, counsel's preparation for trial at guilt/innocence and punishment, and Applicant's claim about possibly receiving the death penalty if found guilty.
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. To resolve the disputed issues, 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. 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: September 20, 2017
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