Tapia, Michael

• Court: Court of Criminal Appeals of Texas
• Decided: March 2, 2022
• Docket: WR-93,445-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-93,445-01

EX PARTE MICHAEL TAPIA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2015-74-C1A IN THE 19TH DISTRICT COURT FROM MCLENNAN COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to aggravated assault against a public servant (Count I) and evading

arrest or detention (Count II). He was sentenced to fifteen years’ imprisonment on Count I and ten

years’ imprisonment on Count II, to run concurrently. The Tenth Court of Appeals dismissed

Applicant’s pro se appeal because it was untimely. Tapia v. State, No. 10-17-0089-CR (Tex.

App.—Waco, Mar. 22, 2017) (not designated for publication). 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, among other things, that his plea was involuntary because trial counsel

made threats that induced his guilty plea and because he was incompetent at the time he pleaded 2

guilty. Applicant also contends that he was denied his right to an appeal because counsel failed to

file a notice of appeal, despite Applicant requesting he do so. Applicant has alleged facts that, if

true, might entitle him to relief. Hill v. Lockhart, 474 U.S. 52 (1985); Brady v. United States, 397

U.S. 742 (1970); Garza v. Idaho, 139 S. Ct. 738, 748, 749-50 (2019); Jones v. State, 98 S.W.3d 700,

703-04 (Tex. Crim. App. 2003). Accordingly, the 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 claims. 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 Applicant’s

plea was involuntary. The trial court shall also make specific findings addressing whether Applicant

was competent at the time he pleaded guilty. 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 shall make findings

of fact and conclusions of law as to whether Applicant was denied his right to an appeal because trial

counsel failed to timely file a notice of appeal. The trial court shall make specific findings

addressing whether Applicant instructed counsel to perfect appeal. 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 3

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: March 2, 2022 Do not publish