Porras, Jimmy ( 2022 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,704-01
EX PARTE JIMMY PORRAS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W06-19430-U(A) IN THE 291ST DISTRICT COURT
FROM DALLAS COUNTY
Per curiam.
ORDER
Applicant originally pleaded guilty to aggravated sexual assault of a child in exchange for
five years’ deferred adjudication community supervision. After various extensions of the period of
community supervision, Applicant eventually entered an open plea of true to violating the terms of
his community supervision. He was adjudicated guilty and sentenced to eighteen years’
imprisonment. The Fifth Court of Appeals affirmed his conviction. Porras v. State, No. 05-18-
01108-CR. Applicant filed this application for a writ of habeas corpus in the county of conviction,
and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.
Applicant contends, among other things, that his adjudication counsel was ineffective
because counsel advised Applicant to reject a plea offer that would have resulted in the minimum
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possible five-year prison sentence, and instead advised Applicant to enter an open plea of true.
Applicant alleges that adjudication counsel advised him that the adjudicating court would likely
sentence him to time served if he entered an open plea of true. Instead, the trial court sentenced
Applicant to eighteen years’ imprisonment.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate
forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall obtain
an affidavit from the trial prosecutor, detailing what plea offers, if any, the prosecutor extended in
exchange for Applicant’s plea of true at adjudication. The trial court shall also order adjudication
counsel to respond to Applicant’s claims. Specifically, adjudication counsel shall state whether he
communicated any plea offers to Applicant at the adjudication stage, and shall state what advice, if
any, he gave to Applicant with regard to whether Applicant should plead true pursuant to a plea
agreement, go to a contested adjudication hearing, or enter an open plea of true to the trial court.
In developing the record, the trial court may use any means set out in Article 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 wants to be represented by counsel, the trial court shall appoint counsel
to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or
retained, the trial court shall immediately notify this Court of counsel’s name.
The trial court shall make findings of fact and conclusions of law as to whether adjudication
counsel’s performance was deficient and Applicant was prejudiced. The trial court may make any
other findings and conclusions that it deems appropriate in response to Applicant’s claims.
The trial court shall make findings of fact and conclusions of law within ninety days from
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the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: April 27, 2022
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