Rivera, Irisel

• Court: Court of Criminal Appeals of Texas
• Decided: October 3, 2018
• Docket: WR-88,871-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-88,871-01 AND -02

EX PARTE IRISEL RIVERA, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 59-16-B(A) AND 59-16-B(B) IN THE 25TH DISTRICT COURT FROM GONZALES 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 these applications for writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of engaging in

organized crime and tampering with evidence.

Applicant, through habeas counsel, contends that his guilty pleas were involuntary: because

trial counsel had a conflict of interest due to his joint representation of Applicant and Applicant’s

co-defendants; because Applicant was unaware of the punishment ranges for the offenses, and trial

counsel had told him, “[P]leading open would assuredly result in a probationary sentence without

prison time”; and because trial counsel failed to admonish him that the convictions would render him 2

subject to deportation by federal authorities. The State has presented documentary evidence to show

that Applicant affirmatively waived any conflict-of-interest claim and that Applicant was

admonished of the deportation consequences. The plea papers admonished Applicant of the correct

punishment ranges for the offenses, and counsel stated, “I have read the foregoing ‘Plea Agreement’,

‘Court’s Admonitions to Defendant’, ‘Defendant’s Waiver of Rights and Judicial Confession’, fully

explained each of them to the defendant, and I am satisfied that he/she understands each of them.”

Habeas counsel, however, states that “[Applicant] does not speak the English language” and argues

that Applicant did not understand the documents.

Applicant has alleged facts that, if true, might entitle him 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 shall order

trial counsel to respond to the habeas claims and shall gather facts regarding whether Applicant

understood the documents in question. To do so, the trial court may use any means set out in TEX .

CODE CRIM . PROC. art. 11.07, § 3(d). 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 still

represented by habeas counsel. If not, the trial court 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 credibility determinations and shall make findings of fact and

conclusions of law in regard to Applicant’s habeas claims. 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 3

Applicant’s claim for habeas corpus relief.

These applications 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 must

be requested by the trial court and shall be obtained from this Court.

Filed: October 3, 2018 Do not publish