Gallegos, Francisco

• Court: Court of Criminal Appeals of Texas
• Decided: January 29, 2020
• Docket: WR-86,258-05
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-86,258-05

EX PARTE FRANCISCO GALLEGOS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 20160D03556-41-1 IN THE 41ST DISTRICT COURT FROM EL PASO COUNTY

Per curiam.

ORDER

Applicant was charged with indecency with a child by contact, pleaded guilty to injury to a

child pursuant to a plea agreement, and was sentenced to five years’ imprisonment. He did not

appeal his conviction. 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 that when he pleaded guilty to injury to a child, he believed that he was

pleading guilty to a separate offense, not a lesser-included offense of indecency with a child by

contact, as set out in the judgment. He contends that the plea agreement was breached, his plea was

involuntary, and trial counsel was ineffective.

On September 25, 2019, we remanded this application and directed the trial court to order 2

trial counsel and the prosecutor, Chanel Rizk, to respond to Applicant’s claims. According to the

supplemental record, trial counsel responded in a sworn affidavit, but nothing in the record indicates

that Rizk responded. If she has not responded, the trial court shall order her to respond. The trial

court may also order trial counsel to file a second response.

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 further findings of fact and conclusions of law as to whether (1)

Applicant pleaded guilty to an authorized lesser-included offense of indecency with a child by

contact, as alleged in the indictment, see Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007); (2)

if Applicant did not plead guilty to an authorized lesser-included offense, trial counsel was deficient

for advising Applicant that he was pleading guilty to a lesser-included offense; and (3) Applicant was

prejudiced by counsel’s alleged deficient conduct. 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

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: January 29, 2020 Do not publish