Opinion
WR-95,808-01
09-18-2024
EX PARTE ANGEL ABIEL MONTEMAYOR, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2022CRC000108D1 IN THE 49TH DISTRICT COURT FROM WEBB COUNTY
Keller, P.J., dissented.
ORDER
PER CURIAM.
Applicant was convicted of two counts of intoxication manslaughter with a vehicle and sentenced to eight years' imprisonment. 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 his right to be present to plead guilty in open court was violated by the trial court conducting the hearing via videoconference without his written consent. See TEX. CODE CRIM. PROC. arts. 1.13(a), 27.18(a)(1). Applicant has alleged facts that, if true, might entitle him to relief. Lira v. State, 666 S.W.3d 498 (Tex. Crim. App. 2023). 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 consented in writing to enter his guilty plea via videoconference. The trial court shall make findings of fact and conclusions of law as to whether there were any exceptions that eliminated the necessity for Applicant's written consent to hold the proceeding via videoconference.
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.