Opinion
NO. WR-89,951-02
09-11-2019
EX PARTE ELIAS MUNOZ GUTIERREZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W15-12656-L(B) IN CRIMINAL DISTRICT COURT NO. 5 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 pleaded guilty to aggravated assault and was sentenced to imprisonment for life. The Fifth Court of Appeals affirmed his conviction. Gutierrez v. State, No. 05-16-00552-CR (Tex. App.—Dallas Dec. 28, 2017) (not designated for publication).
Applicant contends that trial counsel led him to believe he would be placed on probation. He also contends that he required a translator and that nothing in the record indicates he understood the plea papers he signed.
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 and state whether (1) she advised Applicant that he would likely be placed on probation; (2) she explained the waivers and admonishments in the plea papers to Applicant; and (3) she believed that Applicant understood these waivers and admonishments. 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 him at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
After reviewing counsel's response, the trial court shall make findings of fact and conclusions of law as to whether (1) counsel's advice to Applicant was deficient; (2) Applicant has demonstrated that there is a reasonable probability he would have insisted on a trial but for counsel's alleged deficient advice; (3) Applicant understood the waivers and admonishments in the plea papers; and (4) his plea was voluntary. 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.
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 11, 2019
Do not publish