Opinion
WR-94,910-01
07-26-2023
EX PARTE MICHAEL ALEXANDER LEWIS, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D41493-CR IN THE 13TH DISTRICT COURT FROM NAVARRO COUNTY
ORDER
Per curiam.
Applicant was convicted of assault family violence/household member - impeding breath or circulation and sentenced to ten years' imprisonment. The Applicant did not file a direct appeal. 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 plea was involuntary because his plea bargain contemplated that he would be bench warranted back to the trial court to be considered for a "shock probation" hearing after he served six months of his sentence. The record shows that a shock probation hearing was scheduled for August 17, 2022, but that neither Applicant nor his trial counsel was present at the hearing.
Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Austin, 746 S.W.2d 226 (Tex. Crim. App. 1988). 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 claim. 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 make any other findings and conclusions that it deems appropriate in response to Applicant's claims.
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.