Opinion
NO. WR-91,721-01
11-04-2020
EX PARTE VICTOR V. GONZALES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR25623-A IN THE 35TH DISTRICT COURT FROM BROWN COUNTY
Per curiam. ORDER
Applicant was convicted of indecency with a child by exposure and sentenced to forty years' imprisonment as a habitual felon. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.
Applicant contends that his guilty plea was involuntary due to the ineffective assistance of his trial counsel. Strickland v. Washington, 466 U.S. 668 (1984); Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997). Applicant alleges that he cannot read or write, that he "has limited ability to comprehend what is read to him," that counsel failed to explain "the nature and seriousness of the charge or the gravity of the sentence" to which he agreed, that he suffers from an unspecified mental illness, and that he did not understand his appellate rights. Applicant contends that the habitual enhancement was improperly pled, but he was led to believe that it was proper, and counsel failed to challenge it. Applicant contends that counsel failed to seek a competency evaluation. Applicant contends that he told counsel he was unaware that there was any child present when he exposed himself, but counsel failed to investigate.
Applicant has alleged facts that, if true, might entitle him to relief. Brady v. United States, 397 U.S. 742 (1970). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX. CODE CRIM. PROC. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant's claims. In developing the record, the trial court may use any means set out in Article 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 wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX. CODE CRIM. PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to whether Applicant's plea was involuntary. The trial court may also make any other findings and conclusions that it deems appropriate.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX. R. APP. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. Filed: November 4, 2020 Do not publish