Hernandez, Carlos

• Court: Court of Criminal Appeals of Texas
• Decided: February 1, 2017
• Docket: WR-86,138-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-86,138-01

EX PARTE CARLOS HERNANDEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 20160D01804-384-1 IN THE 384TH DISTRICT COURT FROM EL PASO 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 driving while

intoxicated with a prior intoxication manslaughter conviction and sentenced to four years’

imprisonment. He did not appeal his conviction.

Petitioner, Y. Hernandez, has submitted this habeas application on Applicant’s behalf.

Applicant claims that his guilty plea was involuntary. He says trial counsel failed to communicate

with him the repercussions of pleading guilty. Rather, he says counsel advised him that pleading

guilty without a plea recommendation “was the best option considering the circumstances” and that 2

Applicant “would not face jail time.” Applicant, however, received a sentence of incarceration. There

is no affidavit in response from trial counsel or findings from the trial court in the habeas record

provided to this Court. See Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Morrow, 952

S.W.2d 530 (Tex. Crim. App. 1997).

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 shall order

trial counsel to respond to Applicant’s claim and shall resolve the disputed factual issues. 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, and the trial court shall make a finding regarding whether

Applicant has authorized petitioner to submit this habeas application on his behalf. 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 3

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

be requested by the trial court and shall be obtained from this Court.

Filed: February 1, 2017 Do not publish