PADILLA, ROBERT JESSE Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: January 14, 2015
• Docket: WR-82,426-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,426-02

EX PARTE ROBERT JESSE PADILLA, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 06-921-K368 IN THE 368TH DISTRICT COURT FROM WILLIAMSON 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 pleaded guilty to possession with

intent to deliver a controlled substance in a drug free zone, and was sentenced to fifteen years’

imprisonment. He did not appeal his conviction.

Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance

and that his plea was not knowingly and voluntarily entered. Applicant alleges that counsel gave him

1 This Court has reviewed Applicant’s other claims, and finds them to be without merit. 2

erroneous advice to the effect that he would serve his sentence concurrently with a federal sentence,

and that he would be released to parole as soon as he was finished serving his federal time.

Applicant also alleges that trial counsel told him that he could receive a thirty-five year sentence if

he did not plead guilty pursuant to this agreement.

The plea admonishments and the judgment in the habeas record indicate that Applicant was

admonished as to the punishment range for a first degree felony, and that he pleaded guilty to a first

degree felony offense with no enhancements. However, the offense as charged in the indictment

should have been an “enhanced” second degree felony. The drug free zone allegation in this case

would have had the effect of raising the minimum punishment and doubling the available fine, but

would not have increased the degree of the offense or the maximum available punishment. There

is no information in the record regarding Applicant’s federal sentence(s).

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); 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 trial counsel to respond to Applicant’s claims of ineffective assistance of counsel. 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 as to whether the

performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient 3

performance prejudiced Applicant. The trial court shall also make findings of fact and conclusions

of law as to whether Applicant’s guilty plea was knowingly and voluntarily entered with a full

understanding of the nature and consequences of that plea. 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: January 14, 2015 Do not publish