Opinion
NO. WR-87,217-01
08-23-2017
EX PARTE MARK ANTHONY RAMOS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W15-51172-I(A) IN THE CRIMINAL DISTRICT COURT NO. 2 FROM DALLAS COUNTY
Per curiam. 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered an open plea of guilty to aggravated assault, and was sentenced to ten years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Ramos v. State, No. 05-15-01228-CR (Tex. App. — Dallas, Jan. 27, 2016) (not designated for publication).
Applicant contends, among other things, that his trial counsel rendered ineffective assistance, resulting in an involuntary plea of guilty. Applicant alleges that trial counsel was ineffective for advising him to plead guilty to aggravated assault without explaining the intent requirement for that offense. Applicant alleges that the evidence supported only a conviction for deadly conduct. Applicant alleges that trial counsel advised him that he would receive probation if he entered an open plea, or that he would only have to serve 15% of any sentence he did receive. According to Applicant, he did not learn until he arrived at TDCJ that he would have to serve one half of his sentence before being eligible for parole. Applicant alleges that trial counsel should have filed a motion to suppress his statements to investigators because he was not provided with Miranda warnings before making those statements. Applicant also alleges that trial counsel should have objected when the prosecutor asked Applicant whether he had attempted to pay the complainant's medical bills. Applicant alleges that but for trial counsel's erroneous advice, he would not have entered an open plea of guilty to the charges.
This Court has considered Applicant's other ground for review and finds it 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 record indicates that the trial court timely designated the issue of whether trial counsel was ineffective, and that trial counsel provided an affidavit responding generally to this issue. Because trial counsel was not ordered to and did not provide responses to the specific issues described above, the trial court entered a second order on April 13, 2017, requiring a more specific affidavit from trial counsel. However, the district clerk properly forwarded the habeas record to this Court after 180 days had passed since the date upon which the State received service of the application.
Because the trial court has already ordered trial counsel to respond specifically to Applicant's claims of ineffective assistance of counsel, we remand this application to the Criminal District Court No. 2 of Dallas County to allow the trial court to complete an evidentiary investigation and enter findings of fact and conclusions of law.
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. 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: August 23, 2017
Do not publish