Wolfgramm, Samuel

• Court: Court of Criminal Appeals of Texas
• Decided: January 11, 2023
• Docket: WR-94,153-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,153-01

EX PARTE SAMUEL WOLFGRAMM, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1005691-A IN THE 174TH DISTRICT COURT FROM HARRIS COUNTY

Per curiam. YEARY , J., filed a concurring opinion in which SLAUGHTER , J., joined. NEWELL, J., concurred.

ORDER

Applicant was convicted of theft and sentenced to 1 year imprisonment. 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.

This application was file-stamped in Harris County on Jan. 13, 2011. An order designating

issues was signed by the trial judge on Feb. 21, 2011. This application was not received by this

Court until Sept. 13, 2022. The writ record before this Court indicates that the habeas court may have

conducted hearings in this case on March 17, 2011, and March 25, 2011. However, the record does

not contain hearing transcripts or suggest any action by the trial court after those hearing dates. Nor 2

is there any indication as to why this application was pending in Harris County for so long without

any action by the clerk or the trial court.

Applicant contends that his plea was involuntary because trial counsel: (a) failed to inform

Applicant of the immigration consequences of the plea bargain and sentence; (b) misinformed

Applicant regarding the punishment range of the offense; and (c) failed to appropriately figure and

argue restitution amounts that were tied to the State’s plea offers. Applicant alleges that, as a result

of his guilty plea, he faces permanent deportation from the United States. Applicant has alleged facts

that, if true, might entitle him to relief. Brady v. United States, 397 U.S. 742 (1970). 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).

As a preliminary matter, the trial court shall make findings of fact as to why no action was

taken by the trial court or the clerk between the entry of the order designating issues and the

forwarding of the application to this Court. The trial court shall determine whether, and when,

Applicant was deported from the United States. If Applicant or his habeas counsel can be located,

the trial court shall obtain a response from Applicant or counsel as to whether Applicant still wants

to pursue this application, and shall include that response in the supplemental record. If the trial

court is unable to obtain such a response from Applicant or his counsel, the trial court shall detail

the efforts that were made to obtain a response. The trial court shall then return the application to

this Court.

If Applicant indicates that he wants to pursue this application, the 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 3

whether Applicant is still represented by counsel. If Applicant is no longer represented by counsel,

the court 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 and when

Applicant was deported from the United States, and whether his guilty plea was involuntary. 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

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: Jan 11, 2023 Do not publish