Opinion
NO. WR-87,361-01 NO. WR-87,361-02
09-20-2017
EX PARTE JOSHUA KILOVE MONTOYA, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. W15-75153-U (A) & W15-57584-U (A) IN THE 291ST DISTRICT COURT FROM DALLAS COUNTY
Per cur i am. 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 writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant originally pleaded guilty to aggravated robbery in exchange for deferred adjudication community supervision. He was later adjudicated guilty pursuant to a plea of "true" and sentenced to fifteen years' imprisonment in that case. At the same time, he entered an open plea of guilty to a new charge of burglary of a building, and was sentenced to two years in state jail, to run concurrently. He did not appeal his convictions.
Applicant contends, among other things, that his trial counsel rendered ineffective assistance because counsel mis-advised Applicant regarding the strength of the State's evidence in the aggravated robbery case, failed to advise him of his options regarding a plea of "true" or "not true" at adjudication, failed to advise him of his plea options regarding the burglary of a building case, failed to advise him of the nature and consequences of his plea(s), allowed him to waive his right to appeal without properly explaining the waiver to him, and threatened him with a "99-year probation" if he did not plead guilty in exchange for ten years' deferred adjudication in the aggravated robbery case.
This Court has reviewed Applicant's other claims and finds them to be without merit. --------
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 order trial counsel to respond to Applicant's claims of ineffective assistance of counsel. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 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 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 as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time must be requested by the trial court and shall be obtained from this Court. Filed: September 20, 2017
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