Montes, Tina

• Court: Court of Criminal Appeals of Texas
• Decided: August 20, 2014
• Docket: WR-81,705-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-81,705-01

EX PARTE TINA MONTES, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. FDP-13-21855 IN THE 52ND DISTRICT COURT FROM CORYELL 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 possession of a

controlled substance with intent to deliver in a drug free zone and sentenced to ten years’

imprisonment. She did not appeal her conviction.

Applicant contends that her plea was involuntary because counsel advised Applicant

incorrectly as to her parole eligibility. Ex parte Moussazadeh, 361 S.W.3d 684, 691–92 (Tex. Crim.

App. 2012); TEX . GOV ’T . CODE § 508.145(e). Applicant has alleged facts that, if true, might entitle 2

her 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 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.

The trial court shall make findings of fact and conclusions of law in regard to Applicant’s

claim that her plea was involuntary. The trial court shall make specific findings as to whether

counsel told Applicant that she would be eligible for parole in three years, despite a conviction for

an offense committed in a drug free zone. If the court finds counsel erred, it shall make specific

findings as to whether there is a reasonable probability that, but for counsel’s errors, Applicant

would have insisted on a trial. 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

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: August 20, 2014

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