Opinion
No. WR-73,798-01
Filed: May 12, 2010. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus Cause No. 1038237 in the 177th District Court from Harris 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 was convicted of aggravated assault and sentenced to three years' imprisonment. He did not appeal his conviction. Applicant contends that his trial counsel rendered ineffective assistance because she failed to interview witnesses and informed him that he would "probably not be deported" for a judgment of deferred adjudication. 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). However, it is also apparent from the face of the judgment that Applicant may have fully discharged this sentence. There are no findings in the record on whether or not Applicant is still incarcerated regarding this conviction and if not, whether he is suffering collateral consequences from this conviction. The trial court finds that "there are currently federal removal/deportation proceedings" against Applicant, but there is no evidence in the habeas record to support such a finding. 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 may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d). It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if Applicant is represented by counsel, and if not, 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. C ODE CRIM. PROC. art. 26.04. The trial court shall make supplemental findings of fact as to whether Applicant has fully discharged this sentence. If so, the trial court shall make a finding as to whether Applicant is suffering collateral consequences from this conviction. If Applicant is currently in removal proceedings due to this conviction, the record shall be supplemented with documents from that proceeding. The trial court may also make any other supplemental 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.