Acosta, Francisco ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-69,780-01

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EX PARTE FRANCISCO ACOSTA, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 52246-243-1 IN THE 243RD DISTRICT COURT FROM EL PASO COUNTY

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   Per curiam.

O R D E R  

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 was convicted of delivery of a controlled substance and sentenced to twenty-five years' imprisonment. He did not appeal his conviction.

Applicant contends that his plea was involuntary because he was not advised by counsel or admonished by the trial court of the deportation consequences of his plea. We remanded this application to the trial court for findings of fact and conclusions of law.

The trial court entered findings that Applicant had not proven that he was not a United States citizen and that he had not proven that his plea was involuntary. The trial court recommended denying relief. However, the current record shows that Applicant was a citizen of Mexico when he pleaded guilty. The record further shows that Applicant was not admonished of the deportation consequences of his plea before he was convicted. Finally, the record shows that Applicant was deported, in part as a result of this conviction.

Applicant alleged that he would not have pleaded guilty if he had been aware of the possibility of deportation. This factual allegation, if true, would entitle him to relief. Applicant is entitled to an opportunity, by way of a live evidentiary hearing, to prove his claim that his plea was involuntary. Ex parte Tovar, 901 S.W.2d 484 (Tex. Crim. App. 1995).

The trial court shall hold a live hearing in order to provide Applicant with an opportunity to prove his claim. The trial court 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.

Following the live hearing, the trial court shall make findings of fact and conclusions of law. The trial court shall make findings as to whether Applicant's plea of guilty was involuntary. The trial court shall make a finding as to whether Applicant would have pleaded guilty if he had been aware of the possibility of deportation. 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. The trial court shall supplement the habeas record with copies of all documents upon which its findings are based. A supplemental transcript containing all affidavits and interrogatories and the transcription of the court reporter's notes from any hearings or depositions, 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.

Filed: October 8, 2008

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