IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NUMBER W02-01749-L(A) IN THE CRIMINAL

DISTRICT COURT NO. 5 DALLAS COUNTY

Per curiam.

O R D E R

This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pled guilty to felony DWI, enhanced with two sequential previous felony DWI convictions. Applicant was sentenced in accordance with a plea agreement to a term of twenty-five years in prison. There was no direct appeal.

In this application for a writ of habeas corpus, Applicant argues, inter alia, that his counsel provided ineffective assistance. Specifically, Applicant makes three arguments. First, Applicant contends that counsel failed to advise him that he could stipulate to the prior convictions for driving while intoxicated at trial, and Applicant believed that if he went to trial, the jury would have to learn of the prior drunk driving convictions. Second, he contends that counsel incorrectly informed him that if he was found guilty of this felony DWI, the sentence could be stacked onto a previous felony DWI sentence. Last, he contends that counsel failed to argue or obtain a ruling concerning whether the prior felony DWI convictions were being properly used to enhance his sentence to that of a habitual offender.

The habeas court requested a response from trial counsel regarding Applicant's ineffective assistance of counsel claims. Trial counsel provided an affidavit that the habeas court found true and correct and upon which the trial court relied in recommending that Applicant's claims be denied. However, as Applicant correctly points out in response to the court's findings, "The affidavit submitted by trial counsel . . . fails to address Applicant's ineffective assistance of counsel claims."

Thus, although the trial court has entered findings of fact and conclusions of law, it is this Court's opinion that more information is needed before this Court can render a decision on these grounds for review. Further information must be submitted, including affidavits from Applicant's two trial attorneys, Mr. Daniel C. Perez and Mr. Tim Gonzalez, that specifically address Applicant's ineffective assistance of counsel claims.

Because this Court cannot hear evidence, Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum. The trial court shall resolve these issues as set out in Article 11.07, Section 3(d), of the Texas Code of Criminal Procedure. In addition to ordering an affidavit from trial counsel, the trial court may order additional affidavits, depositions, interrogatories, or hold a hearing. In the appropriate case, the trial court may rely on its personal recollection.

If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent, and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Article 26.04 of the Texas Code of Criminal Procedure, appoint an attorney to represent him at the hearing. Following the receipt of additional information, the trial court shall determine whether applicant was denied the effective assistance of counsel. The trial court shall also make any further findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's application for habeas corpus relief.

Further, because this Court does not hear evidence, Ex parte Rodriguez, 334 S.W.2d at 294, this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. ⁽¹⁾ 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. ⁽²⁾

FILED: December 14, 2005

DO NOT PUBLISH

1. ¹ In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

2. ² Any extensions of this time period should be obtained from this Court.