Opinion
NO. WR-88,479-01
06-06-2018
EX PARTE MANUEL SOTO, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W05-71411-V (A) IN THE 292ND 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 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 sexual assault of a child and was sentenced to thirty years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Soto v. State, No. 05-05-01605-CR (Tex. App. — Dallas, July 27, 2006) (not designated for publication).
Applicant contends, among other things, that his trial counsel rendered ineffective assistance because trial counsel advised him to decline a plea offer and enter an open plea by assuring him that he would receive probation from the trial court, but would receive a life sentence from a jury. Applicant alleges that trial counsel failed to advise him of the difference between deferred adjudication community supervision and "straight" probation, or of the fact that the latter was not available to the trial court. Applicant alleges that trial counsel was not present during the PSI interview and failed to review the PSI report prior to the entry of the plea, and also failed to object to the fact that the trial court and the State had reviewed the PSI report before Applicant entered his plea. Applicant alleges that trial counsel failed to present evidence to correct factual errors contained in the PSI report, failed to object when the State presented witnesses who opposed probation, and failed to object to hearsay testimony or evidence.
This Court has considered 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. 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 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 Do not publish.