EX PARTE JOSEPH CUDDIHY (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-69,630-01

EX PARTE JOSEPH CUDDIHY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 07-01-10,620A-A IN THE 24TH DISTRICT COURT

FROM DE WITT COUNTY

Per curiam.

O R D E R

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 delivery of a controlled substance, cocaine, in an amount less than 28 grams, in a drug free zone, and sentenced to ten years' imprisonment. He did not appeal his conviction.

Applicant contends, inter alia, that his plea was involuntary due to the ineffective assistance of counsel because counsel failed to: (1) assist Applicant in making the decision whether to accept the plea offer; (2) understand and advise Applicant of the consequences of the drug free zone finding; and (3) inform Applicant that he could enter into an agreement memorandum with the State to receive a more lenient sentence in exchange for cooperating with law enforcement. The current habeas record does not include the plea papers but it does reflect that Applicant received the maximum sentence for the charged offense.

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 shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. 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 and court records. Id.

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 due to the ineffective assistance of counsel. 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 the plea papers, affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's 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: May 7, 2008

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