Opinion
No. WR-70,254-01
Delivered: August 20, 2008. DO NOT PUBLISH
On Application for a Writ of Habeas Corpus Cause No. 01-E-227-A, In the 130th Judicial District Court from Matagorda 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant entered an open plea of guilty to felony driving while intoxicated, and was sentenced to four years' imprisonment. He did not appeal his conviction. Applicant contends, inter alia, that his plea was involuntary because trial counsel incorrectly advised him that he could receive probation if he entered an open plea to the trial court. In fact, because the indictment contained a deadly weapon allegation, Applicant was ineligible for either "straight" probation or deferred adjudication probation. Applicant also alleges that trial counsel entirely failed to advise him of his appellate rights, and that he was therefore deprived of the opportunity to appeal. 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. 1960), 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 and conclusions of law in regard to Applicant's claim that his plea was involuntary. The trial court shall make findings as to whether Applicant's counsel advised him that he would be eligible for probation if he pleaded guilty to the offense as alleged in the indictment. The trial court shall also make findings as to whether Applicant was properly advised of the nature of the charges, the applicable punishment range, the rights he was waiving, and the consequences of his plea. The trial court shall make findings as to whether Applicant expressly waived his right to appeal, and if not, whether he was advised of his appellate rights. 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. 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. 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.