Opinion
NO. WR-86,251-01 NO. WR-86,251-02
01-25-2017
EX PARTE BENJAMIN GONZALEZ, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 10-CR-2539-D AND 10-CR-0568-D IN THE 105TH DISTRICT COURT FROM NUECES 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 originally pleaded guilty in separate proceedings to one charge of possession of a prohibited substance in a correctional facility in exchange for five years, probated, and one charge of aggravated sexual assault of a child in exchange for ten years' deferred adjudication community supervision. Applicant's community supervision and deferred adjudication community supervision were later revoked, and he was sentenced to five years' imprisonment in the possession of a prohibited substance case and fifteen years' imprisonment in the aggravated sexual assault case. He did not appeal his convictions.
Applicant contends in these applications that his original please were involuntary and that his trial counsel rendered ineffective assistance because counsel advised him erroneously that the complainant in the aggravated sexual assault of a child case could not be called because she was not competent to testify. Applicant alleges that he would not have pleaded guilty in either of these cases had he known that the complainant in the aggravated sexual assault case was competent and could be called to testify.
Applicant indicates on the application forms in these two cases that the instant applications are intended to supplement applications previously filed in the trial court and still pending in the trial court at the time these applications were filed. Applicant states that no answer had been filed and the trial court had taken no steps to resolve the claims raised in the initial applications at the time these applications were filed, and emphasizes that the claims raised in the instant applications are intended to supplement the pending applications. This Court did not receive the initial applications, but only received the instant applications from Nueces County.
The State filed answers in both of these cases, indicating that it cannot effectively respond to these applications because the trial court's files in Cause Number 10-CR-2539-D (the -02 case) are missing. In addition, the State notes that the instant applications are the only applications delivered by the District Clerk to the State, and that no other application materials can be located. The State asked the trial court to enter an order designating issues and to "suspend all deadlines so that they might be either located or resubmitted." The trial court did not enter a timely order designating issues, and the "supplemental" applications were forwarded to this Court.
Furthermore, according to TDCJ's records, Applicant discharged his sentence in the -01 case on December 12, 2015. He is no longer confined pursuant to the -01 charge, and does not in his supplemental application allege that he is suffering continuing consequences as a result of that conviction.
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). Furthermore, it appears that the supplemental applications forwarded to this Court do not contain all of Applicant's claims for 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 shall order trial counsel to respond to Applicant's claims of ineffective assistance of counsel. 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 first supplement the habeas records with copies of all documents filed by Applicant in the district court. If Applicant filed previous applications pertaining to these convictions, the trial court shall forward copies of those applications to this Court.
As an initial matter, the trial court shall make findings of fact and conclusions of law as to whether Applicant has demonstrated that he is suffering sufficient continuing consequences from the -01 conviction to allow this Court to address his habeas claims. See Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010).
The trial court shall 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 make findings of fact and conclusions of law as to whether Applicant's pleas of guilty were knowingly and voluntarily entered. 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 in these and in any other applications filed by Applicant pertaining to these convictions.
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: January 25, 2017
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