Opinion
Nos. WR-73,141-01 and WR-73,141-02
Filed: January 13, 2010. DO NOT PUBLISH.
On Applications for Writs of Habeas Corpus Cause Nos. B0914-1 and B08579-1, appeal from the 198th Judicial District Court, Kerr 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of one charge of possession of a controlled substance and sentenced to fifteen years' imprisonment. He subsequently pleaded guilty to another charge of delivery of a controlled substance in exchange for a second fifteen-year sentence, to run concurrently with the first sentence. He waived his right to appeal in both cases. Applicant contends that his trial counsel rendered ineffective assistance because he failed to file a motion to suppress evidence obtained in an illegal search and seizure, failed to interview or subpoena witnesses, and failed to advise Applicant of the consequences of waiving his appellate rights. Applicant also alleges that after he was found guilty in the -02 case, counsel advised him to plead guilty to the -01 charge because he "could not win" the case. Applicant alleges that he would not have pleaded guilty to the -01 charge had counsel not been ineffective in the -02 case. 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 trial 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 as to how and when the State gave notice of its intent to enhance punishment in these cases. The trial court shall make findings as to whether counsel filed a pre-trial motion to suppress evidence, or argued that the evidence in these cases was obtained by way of an unconstitutional search and seizure. If counsel did not challenge the validity of the search and seizure, the trial court shall make findings as to why not. The trial court shall make findings as to whether counsel interviewed witnesses, and as to whether counsel subpoenaed either of Applicant's fellow-passengers to testify at his trial. If counsel did not subpoena these witnesses, the trial court shall make findings as to why he did not. The trial court shall make findings as to why counsel advised Applicant to waive his right to appeal the -02 conviction. The trial court shall make findings as to whether counsel advised Applicant to plead guilty in the -01 cause, and if so, whether such advice was deficient. The trial court shall make findings as to whether the performance of Applicant's trial attorney 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. These applications 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.