Opinion
NO. WR-88,415-01
06-06-2018
EX PARTE MOHAMMAD SALAUDDIN SARKER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR13740 IN THE 266TH DISTRICT COURT FROM ERATH 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 pleaded guilty to evading arrest or detention with a motor vehicle in exchange for five years' deferred adjudication community supervision. He was later adjudicated guilty and sentenced to two years' imprisonment. He did not appeal his conviction.
Applicant contends, among other things, that his trial counsel rendered ineffective assistance because trial counsel failed to properly advise Applicant of the immigration/deportation consequences of his original plea. Applicant alleges that when he asked trial counsel about the standard admonishment with regard to potential immigration/ deportation consequences, trial counsel affirmatively mis-advised him by telling him that he would "be alright." Although trial counsel has submitted an affidavit responding to some of Applicant's habeas claims, that affidavit does not state what advice, if any, trial counsel gave Applicant with regard to the immigration/ deportation consequences of his plea.
This Court has reviewed Applicant's other claims and finds them 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 trial court shall order trial counsel to respond to Applicant's claim of ineffective assistance of counsel. Specifically, trial counsel shall state whether he was aware that Applicant was not a U.S. citizen at the time of this offense, and what trial counsel understood Applicant's immigration status to be at the time of the offense. Trial counsel shall state what advice, if any he gave to Applicant with regard to whether a plea of guilty in exchange for deferred adjudication community supervision would affect Applicant's immigration status, and if so, how. Trial counsel shall state whether he consulted with an immigration attorney, and if not, why not. Trial counsel shall state whether he advised Applicant that he would "be alright" if he pleaded guilty in exchange for deferred adjudication community supervision in this case. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d).
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 supplement the habeas record with a transcript of the original plea proceedings in this case if such a transcript exists. The trial court shall then make findings of fact and conclusions of law as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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. 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: June 6, 2018
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