Lopez-Rodriguez, Jose

• Court: Court of Criminal Appeals of Texas
• Decided: December 11, 2019
• Docket: WR-90,632-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,632-01

EX PARTE JOSE LOPEZ-RODRIGUEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 91-15-B IN THE 25TH DISTRICT COURT FROM GONZALES COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to injury to a child and was sentenced to thirty-eight years’

imprisonment. 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 his plea was involuntary because trial counsel told him he would

receive probation if he pleaded guilty, failed to investigate the case, failed to properly inform him

that he was pleading guilty to a first degree felony, not a state jail felony, failing to call the in-home

therapist as a defense witness, and failing to object to false information regarding a prior arrest in

Dallas County. Applicant has alleged facts that, if true, might entitle him to relief. Hill v. Lockhart,

474 U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013). Accordingly, the 2

record should be developed. The trial court is the appropriate forum for findings of fact. TEX . CODE

CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant’s

claim. 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 findings of fact and conclusions of law as to whether trial counsel’s

performance was deficient and 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 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: December 11, 2019 Do not publish