Opinion
Nos. WR-66394-01 -02.
December 20, 2006. DO NOT PUBLISH.
On Applications for Writ of Habeas Corpus, Cause Nos. 20040D01630 20040D01841 in the 210th District Court from El Paso County.
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of possession of more than four grams of methamphetamine and of engaging in organized criminal activity — forgery. He was sentenced to ten years' and five years' imprisonment. He did not appeal these convictions. Applicant contends that his pleas were involuntary, his trial counsel rendered ineffective assistance, and the State did not disclose exculpatory evidence. All of these contentions concern whether Applicant was illegally stopped. Applicant alleges that the arresting officer stated he stopped Applicant solely because he was not wearing a seat belt, but that the officer's videotape of the stop clearly shows Applicant was wearing a seat belt. He alleges counsel told him that there was no videotape of the stop, and therefore did not seek to suppress evidence seized as a result of the stop, but that charges in federal court were subsequently dismissed because there was a videotape which showed that Applicant was wearing a seat belt, such that the stop was not legal. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex.Crim.App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex.Crim.App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. 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 as to: whether Applicant's guilty pleas were the product of evidence seized during a search of his car; whether the State proffered any evidence showing probable cause for any such search other than Applicant's arrest for failure to wear a seat belt; whether a videotape existed showing Applicant was wearing a seat belt at the time of his stop; whether the State disclosed the existence of any such videotape; and whether Applicant's trial attorney sought to suppress evidence seized during an illegal search. 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. 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.