Opinion
No. WR-62,032-01
May 10, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus from Cause No. 906719 in the 180th Judicial District Court of Harris County.
ORDER
This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant pleaded guilty to the offense of possession with intent to deliver cocaine, and punishment was assessed at fifty years' confinement. Applicant's conviction was affirmed on appeal. Morales-Esquivel v. State No. 01-03-00011-CR (Tex.App.-Dallas, delivered February 5, 2004, no pet.). Applicant contends that he received ineffective assistance of counsel and that his plea was not knowingly and voluntarily entered. Specifically, he alleges that he spoke almost no English, and that counsel, who acted as his translator, possessed only a rudimentary command of the Spanish language. According to Applicant, counsel informed him that he was pleading guilty in exchange for a recommended punishment of fifteen years. When Applicant received a fifty year sentence instead, he moved to withdraw his plea, but the trial court denied the motion. The trial court has entered findings of fact and conclusions of law finding that Applicant has failed to overcome the presumption that his plea was knowingly and voluntarily entered. The trial court also finds that Applicant has failed to demonstrate that counsel was ineffective. However, because trial counsel has not been asked to respond to Applicant's allegations, we do not believe that the trial court's factual findings are sufficient to completely resolve the issues presented. Because Applicant has stated facts requiring resolution and because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution of those issues. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order affidavits, depositions, or interrogatories from counsel or it may order a hearing. If the trial court elects to hold a hearing, it shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing. The trial court shall then make findings of fact as to whether counsel was able to communicate with Applicant based on counsel's knowledge of Spanish or Applicant's understanding of English. The court shall make findings as to whether Applicant ever requested an interpreter, and if so, whether one was appointed for him. The court shall also make findings as to whether counsel informed Applicant that he was pleading guilty in exchange for a fifteen-year sentence, or whether any such agreement ever existed. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus. Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.Crim.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within ninety days of the date of this order. A supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within one hundred and twenty days of the date of this order. IT IS SO ORDERED.
In the event any continuances are granted, copies of the order granting the continuance shall be provided to this Court.
Any extensions of this time period shall be obtained from this Court.