Hernandez, Sergio

• Court: Court of Criminal Appeals of Texas
• Decided: September 28, 2022
• Docket: WR-94,105-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,105-01

EX PARTE SERGIO HERNANDEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 661256-A IN THE 185TH DISTRICT COURT FROM HARRIS COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to unlawful possession of a controlled substance and was sentenced

to three 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, among other things, that his plea was involuntary because trial counsel

failed to adequately investigate the facts and legal issues of the case and to advise him that he had

the option of taking the case to trial. Applicant has alleged facts that, if true, might entitle him to

relief. Hill v. Lockhart, 474 U.S. 52 (1985). Accordingly, the record should be developed. The trial

court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). 2

According to the State Bar, trial counsel is deceased. If a response from counsel is impossible, the

trial court shall determine whether counsel’s file from this case is available for inspection. It also

appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall

determine if Applicant is represented by counsel, and if not, 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. See TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make specific findings of fact as to whether the doctrine of laches bars

consideration of the instant application. If laches does not, the trial court shall make findings of fact

and conclusions of law as to whether trial counsel’s performance was deficient and whether

Applicant would have insisted on a trial but for counsel’s alleged deficient performance. The trial

court may make any other findings and conclusions that it deems appropriate in response to

Applicant’s claim.

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: September 28,2022 Do not publish