Ortiz, Francisco L. ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-64,898-01

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EX PARTE FRANCISCO L. ORTIZ, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. 99-430,681 IN THE 140^TH JUDICIAL DISTRICT COURT OF LUBBOCK COUNTY

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Per curiam.

O R D E R  

This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant originally pleaded guilty to the offense of aggravated assault, and punishment was assessed at ten years' deferred adjudication community supervision. His community supervision was later revoked, and he was sentenced to ten years' confinement after the adjudication of guilt. No direct appeal was taken.

Applicant contends that his original plea was not knowingly and voluntarily entered, because he was not properly advised of the nature of the charges and the consequences of the plea. Applicant alleges that counsel told him what to say and instructed him to sign the plea papers, and that he understood only that if he did as he was instructed, he would "walk free on probation."

The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from counsel, or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection.

If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.

Following receipt of additional information, the trial court shall make findings of fact as to whether counsel advised Applicant of the nature of the charges and the consequences of his plea prior to the entry of the original plea of guilty. The trial court shall also make findings as to whether Applicant was properly admonished. If there was a plea agreement, the trial court shall supplement the habeas record with a copy of such agreement, as well as copies of any admonishments, stipulations of evidence, or judicial confessions signed by Applicant. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.

Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within ninety days of the date of this order. ⁽¹⁾ 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 one hundred and twenty days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 20^TH DAY OF SEPTEMBER, 2006.

EN BANC

DO NOT PUBLISH   

1.

In the event any continuances are granted, copies of the order granting the continuance shall be provided to this Court.

2.

Any extensions of this time period shall be obtained from this Court.