Opinion
No. WR-63,958-02
April 5, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus from Cause No. W03-34356-U in the 291st Judicial District Court of Dallas County.
ORDER
This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant pleaded guilty to the offense of solicitation of a minor, and punishment was assessed at two years' confinement. No direct appeal was taken. Applicant contends that his guilty plea was not knowingly and voluntarily entered because he was neither admonished by the trial court nor advised by counsel that he would be required to register as a sex offender as a result of this conviction. Applicant further contends that counsel was ineffective for failing to so advise him or to ensure that the trial court properly admonished him under Article 26.13(a)(5) of the Texas Code of Criminal Procedure. The trial court has entered findings of fact or conclusions of law finding that Applicant was not admonished that he would be required to register as a sex offender as a result of this conviction, based on the absence of such admonishments in Applicant's record. The trial court has also found that trial counsel was ineffective for failing to advise Applicant of the requirement. However, we do not believe that those factual findings are sufficient to completely resolve the issues presented, or that they are entirely supported by the record before this Court. Because Applicant has stated facts requiring resolution and because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution of those issues. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order an affidavit from trial counsel, stating whether he ever advised Applicant of the sex offender registration requirements, and whether Applicant had personal knowledge of those requirements from any other source. The court may also elect to hold a hearing to resolve these questions. If the trial court elects to hold a hearing, it shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing. The trial court shall then make findings of fact as to whether counsel advised Applicant that he would be required to register as a sex offender as a result of this conviction, and if not, whether Applicant had personal knowledge from any other source as to the registration requirement. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus. Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.Crim.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within ninety days of the date of this order. A supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within one hundred and twenty days of the date of this order. IT IS SO ORDERED.
In the event any continuances are granted, copies of the order granting the continuance shall be provided to this Court.
Any extensions of this time period shall be obtained from this Court.