Opinion
No. WR-72,732-01
Delivered: October 7, 2009. DO NOT PUBLISH.
On Application for A Writ of Habeas Corpus, Cause No. F43449A, In the 249th Judicial District Court from Johnson 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 one count of placement of a serial number with intent to change identity, and two counts of theft, and was sentenced to eight years' imprisonment. He did not appeal his conviction. Applicant contends, inter alia, that his plea agreement was breached, because the plea agreement specified that his sentence in this case would run concurrently with a sentence from Missouri. Applicant also alleges that his trial counsel was ineffective. Applicant alleges that his counsel advised him that he would be returned to Missouri to serve the remainder of a 30-year Missouri sentence after revocation of parole, and this sentence, concurrently. However, he was sent immediately to TDCJ to serve this sentence, resulting in consecutive, rather than concurrent sentences. Applicant also alleges that he asked trial counsel to withdraw his plea, and that counsel agreed to do so but took no further action. 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. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's counsel with the opportunity to respond to Applicant's claims 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 The trial court shall make findings of fact as to whether Applicant's Missouri parole had already been revoked at the time of his plea in this case, or whether he was to be returned to Missouri for revocation and sentencing proceedings. The trial court shall make findings as to whether Applicant's Missouri parole has been revoked at this time, and if so, whether Applicant's Missouri sentence is being served concurrently with his sentence in this case. The trial court shall make findings as to whether Applicant's counsel advised him that he would be returned to Missouri to serve his sentences there under the terms of this plea agreement. The trial court shall make findings as to whether Applicant asked counsel to withdraw his plea, and if so, whether counsel advised Applicant that he would do so. 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.