Rivera, Daniel

• Court: Court of Criminal Appeals of Texas
• Decided: January 11, 2012
• Docket: WR-76,799-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-76,799-01 EX PARTE DANIEL RIVERA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 0317157 IN THE 8TH DISTRICT COURT

FROM HOPKINS 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of felony driving while intoxicated as a habitual felony offender and was sentenced to thirty years' imprisonment. He did not appeal his conviction.

Applicant raises two claims of ineffective assistance of trial counsel. In his first claim, Applicant contends the DWI the subject of this habeas application could not be charged as a felony because one of the prior DWI misdemeanor convictions used for enhancement was not counseled. See Ex parte Olvera, 489 S.W.2d 586, 589 (Tex. Crim. App. 1973); see also Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001). Had trial counsel investigated and learned this fact, he states he would not have pleaded guilty. In his second claim, Applicant asserts he notified trial counsel he would plead guilty if counsel would attempt to obtain felony probation as punishment. Applicant then entered a guilty plea and received a 30-year sentence as habitual felony offender. He complains counsel failed to inform him he was not eligible for felony probation because of his prior criminal history, which consisted of at least three felonies. But for this bad advice, Applicant asserts he would not have pleaded guilty.

Regarding the first claim, Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 Applicant's first claim of ineffective assistance of counsel. See Ex parte Patterson, 969 S.W.2d 16, 20 (Tex. Crim. App. 1998). In the affidavit, trial counsel shall state whether he investigated the validity of the prior convictions alleged in the enhancement paragraph of the indictment and his reasons for not objecting to the enhancement paragraph. If trial counsel's actions were based on trial strategy, counsel shall explain this strategy.

In addition to obtaining this affidavit from trial counsel, the trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) to resolve disputed factual issues. In the appropriate case, the trial court may rely on its personal recollection. Id. 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 as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. See Strickland,466 U.S. at 687. In doing so, the trial court shall make findings regarding whether Applicant was indigent during the prior DWI proceedings in cause number 6526 from the County Court of Kinney (conviction dated January 30, 1987); whether Applicant was entitled to appointed counsel in those proceedings; whether, if so entitled, Applicant voluntarily waived his right to appointed counsel; and whether Applicant entered the guilty plea in that case without the assistance of either appointed or retained counsel. The trial court shall also make any other findings of fact that it deems relevant and appropriate to the disposition of Applicant's first claim for habeas corpus relief.

Applicant's second claim for habeas corpus relief is without merit and is denied. See Tex. Code. Crim. Proc. art. 42.12 § 4(d)(3), (e); §§ 3(a), 3G; § 5(d)(1)(A).

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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: January 11, 2012

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