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 driving while intoxicated and sentenced to twenty years' imprisonment. The Fourth Court of Appeals dismissed his appeal. See Gutierrez v. State, No. 04-08-00655-CR, (Tex. App. -- San Antonio, 2009, no pet.) (not designated for publication).

Applicant contends that his plea was involuntary because counsel advised him that he would be sentenced to six months drug treatment if he signed the plea agreement. Later, he found out that the plea bargain agreement was for twenty years' confinement. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (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. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) to resolve the fact issues. In the appropriate case, the trial court may rely on its personal recollection. Id. The trial court shall order trial counsel to file an affidavit addressing: (1) whether counsel advised Applicant that the plea agreement was for six months drug treatment; and, (2) whether Applicant indicated to counsel that he understood the terms of the plea agreement when he signed it. The trial court shall instruct the clerk to supplement the record with copies of the indictment, the judgment, and the plea bargain documents including the written plea agreement, admonishments, judicial confession, and waivers, if applicable.

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 and conclusions of law in regard to Applicant's claim that his plea was involuntary because of counsel's deficient performance. The trial court shall make findings of fact as to whether counsel advised Applicant that the plea agreement was for six months drug treatment. The trial court shall make findings of fact as to whether Applicant indicated to counsel that he understood the terms of the plea agreement when he signed it. 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 Applicant's claim for habeas corpus relief.

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: October 7, 2009

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