Opinion
No. WR-65,018-01
Filed: August 9, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. Cr-04-71 in the 25th District Court, from Colorado 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 possession of a controlled substance in drug free zone and sentenced to five (5) years' imprisonment. He did not appeal his conviction. Applicant contends that his plea was involuntary because counsel promised him that he would receive shock probation if he pleaded guilty, and moved for shock probation, when applicant was not eligible for shock probation. 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). 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 may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d), including ordering an affidavit from counsel, to resolve this issue. 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. The trial court shall make findings of fact and conclusions of law in regard to applicant's claim that his plea was involuntary. Specifically, the court shall determine whether counsel promised applicant that he would receive shock probation if he pleaded guilty; whether counsel moved for shock probation; and whether applicant was eligible for shock probation. If the court finds that counsel did make a promise to applicant, the court shall then determine whether that promise rendered the guilty plea involuntary. 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 ninety (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 one hundred twenty (120) days of the date of this order. Any extensions of time shall be obtained from this Court.