Alvarez, Miguel

• Court: Court of Criminal Appeals of Texas
• Decided: December 16, 2015
• Docket: WR-75,007-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-75,007-03

EX PARTE MIGUEL ALVAREZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 24670-86 IN THE 86TH DISTRICT COURT FROM KAUFMAN COUNTY

Per curiam.

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 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 possession with

the intent to deliver a controlled substance and sentenced to ten years’ imprisonment. The Fifth

Court of Appeals dismissed his appeal. Alvarez v. State, No. 05-10-01152-CR (Tex. App.—Dallas

Sept. 29, 2010) (not designated for publication).

In his first ground, Applicant contends that his no contest plea was involuntary because 2

although he agreed to plead no contest to engaging in organized criminal activity, the prosecutor and

trial counsel changed the offense to possession with the intent to deliver a controlled substance.

Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Patterson, 993

S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 order trial counsel to respond to

Applicant’s claim and state whether he believed Applicant’s no contest plea was knowing and

intelligent. The trial court shall also order the District Clerk to forward a copy of the plea hearing

transcript, if available. The trial court may use any means set out in TEX . CODE CRIM . PROC. art.

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 wishes to be represented by counsel, the trial court shall appoint an

attorney to represent him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether Applicant’s

no contest plea was intelligent and knowing. 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 his 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 3

be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.

Filed: December 16, 2015 Do not publish