Lara, Jose

• Court: Court of Criminal Appeals of Texas
• Decided: March 12, 2014
• Docket: WR-80,816-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

No. WR-80,816-01 EX PARTE JOSE LARA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F-2008-1198-C WHC 1

IN THE 211TH DISTRICT COURT FROM DENTON COUNTY

Per curiam.

O R D E R

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 by a jury of possession with intent to deliver cocaine and was sentenced to fifty-five years' incarceration. The conviction and sentence were affirmed on direct appeal. Lara v. State, No. 02-09-00199-CR (Tex. App.--Fort Worth Jul. 15, 2010).

Applicant complains, inter alia, that his trial counsel failed to inform him of a 25-year plea offer that he states he would have accepted. See Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013). There is no response in the record from Applicant's trial counsel regarding the alleged plea offer or findings from the trial court.

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 Applicant's trial counsel to respond to the claim that he failed to convey a plea offer to Applicant. To obtain the response, 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 Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04. A review of Applicant's remaining claims shows that they lack merit.

The trial court shall make findings of fact and conclusions of law regarding whether the plea offer was made, whether it was conveyed to Applicant, whether Applicant would have accepted the plea offer if properly and timely conveyed to him, and whether the plea offer would have been followed by the trial court had Applicant accepted it and entered a guilty or no contest plea. See Missouri v. Frye, supra; Ex parte Argent, supra. The trial court may also make any other findings of fact and conclusions of law it deems relevant and appropriate.

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.

Filed: March 12, 2014

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