Opinion
No. WR-65,948-01
Filed: October 25, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. Cccr-06-02725 in the 220th Judicial District Court, from Comanche 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 pleaded guilty to the offense of attempted capital murder and was sentenced to thirty-five years' imprisonment. He did not appeal his conviction. Applicant contends inter alia that his plea was involuntary because he was unaware of the requirement that he intend to cause the death of the complainant. He further alleges that counsel was ineffective for failing to advise him of this requirement, and for failing to investigate or inquire as to Applicant's version of the events. He alleges that he would not have entered a guilty plea had he known that he lacked the necessary mens rea for the offense. 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). The trial court has entered only general findings of fact, and the habeas record does not contain any documents to refute Applicant's claims. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex.Crim.App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide 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. First, the trial court shall supplement the habeas record with copies of the indictment or information, the plea papers (including admonishments, stipulations, judicial confession, and any written plea agreement), and the judgment. The trial court shall make findings of fact and conclusions of law in regard to Applicant's claim that his plea was involuntary and that counsel was ineffective. 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.