ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 20080D05650-409-1 IN THE 409th DISTRICT COURT FROM EL PASO COUNTY
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 was convicted of aggravated assault and sentenced to fifteen years' imprisonment. The Eighth Court of Appeals dismissed his appeal because this was a plea bargained case and the Applicant had no right to appeal. Porras v. State, No. 08-09-00163-CR (Tex. App.-El Paso, delivered August 12, 2009, no pet.).
Applicant contends that his plea was involuntary because the plea agreement was broken in this case. Specifically, Applicant contends that his plea agreement was for three years' imprisonment, but he was then sentenced to 15 years' imprisonment in violation of that agreement. The trial court has not entered findings of fact and conclusions of law and the habeas record is insufficient at this time to properly address Applicant's claim. The habeas record includes the following:
A. A written plea agreement for three years' imprisonment that appears to be signed off on by the trial court;
B. A trial court's certification of defendant's right to appeal that states this case "is a plea-bargain case, and the Defendant has NO right of appeal.";
C. A judgment which states there was no plea agreement and this case involved an open plea to the trial court.
The record does not contain any docket sheets that might explain why there is a discrepancy between these documents.
Applicant has alleged facts that, if true, might entitle him to relief. 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 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 in regard to Applicant's claim that his plea was involuntary. 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 shall be obtained from this Court.