No. WR-66,877-01
Filed: March 21, 2007. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. W01-76238-M(A), In The 194th Judicial District Court 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant pleaded guilty to aggravated sexual assault of a child and received eight years' deferred adjudication community supervision. His guilt was later adjudicated and he was sentenced to twenty years' imprisonment. The Eighth Court of Appeals affirmed his conviction. Ramos v. State, No. 08-05-00037-CR (Tex.App.-El Paso, April 6, 2006, pet ref'd.). Applicant contends that his plea was involuntary because he did not understand English, and did not understand the consequences of deferred adjudication. Applicant alleges that he believed that he was pleading in exchange for probation, and that his counsel did not inform him of the nature and consequences of the plea. The trial court has entered findings of fact and conclusions of law pertaining to the effectiveness of counsel and the voluntariness of Applicant's plea at adjudication. However, the trial court did not make findings with respect to Applicant's original counsel and plea. 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 shall provide Applicant's original plea 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. The trial court shall make findings of fact and conclusions of law as to whether Applicant's counsel at his original plea was fluent in Spanish, and if not, whether Applicant was provided with an interpreter during the plea proceedings. The trial court shall make findings as to whether Applicant was properly admonished as to the nature of the charges, the rights he was waiving, and the consequences of his plea. The trial court shall make findings specifically as to whether Applicant was aware that he was pleading in exchange for deferred adjudication community supervision, as opposed to a probated sentence. The trial court shall make findings as to whether Applicant was admonished as to the potential consequences of an adjudication. The trial court shall supplement the habeas records with copies of any plea documents or written admonishments not included in the original habeas record. 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.