EX PARTE HECTOR JAVIER GONZALEZ (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-41,454-02, WR-41,454-03, AND WR-41,454-04

EX PARTE HECTOR JAVIER GONZALEZ, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 63791, 60496, AND 46700 IN THE 168TH DISTRICT COURT

FROM EL PASO 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of three counts of sexual assault and sentenced to twenty (20) years' imprisonment on each count. He did not appeal his convictions.

Applicant contends inter alia that his pleas were involuntary because trial court failed to admonish him as to deportation consequences of his pleas as required by Article 26.13(a)(4) of the Texas Code of Criminal Procedure and that the failure to admonish him violated his due process rights. Applicant alleges that if he had been properly admonished, he would not have pleaded guilty, but would have insisted on going to trial. Applicant alleges that he found out about the deportation consequences of his pleas in 1998 when he received a letter informing him that he will be deported to Mexico after he finished serving his sentences. The record showed that Applicant filed these applications in 1998, soon after he received the aforementioned letter.

On May 21, 2008, this Court remanded these applications to the trial court for further fact findings as Applicant had alleged facts that, if true, might entitle him to relief. Ex parte Tovar, 901 S.W.2d 484 (Tex. Crim. App. 1995). Applicant should have been admonished as to the deportation consequences of his pleas before he pleaded guilty in 1986 and in 1992. In response to this Court's order, the trial judge supplemented the record with information showing that the attorney who represented Applicant in 1986 was not available to file an affidavit and that the plea hearing transcript from 1986 could not be located. The trial judge also supplemented the record with an affidavit from the attorney who represented Applicant in 1992, and a transcription of the court reporter's notes from the plea hearing in 1992. This evidence did not clarify whether Applicant was admonished as to the deportation consequences of his pleas before he pleaded guilty. The trial judge entered supplemental findings of fact and conclusions of law recommending that habeas relief be denied because of the lack of evidence in the record. However, we believe that further fact gathering is necessary.

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. We find that a live hearing is necessary in this case so that the trial court can observe Applicant's demeanor in making its determination as to whether Applicant's testimony is credible. The trial court shall determine if 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.

At the hearing, the parties may present live testimony or affidavits in lieu of live testimony. The trial judge shall obtain the following information from the General Counsel's Office of the Texas Department of Criminal Justice: (1) whether Applicant's TDCJ record shows that any deportation holds or detainers have been lodged against the Applicant and, if so, shall set forth the details of such detainers; and, (2) whether Applicant's TDCJ record contains any information as to where Applicant will be transferred after he finished serving his sentences and, if so, shall set forth the information. The trial judge shall obtain the following information from Ward L. Koehler, who presided over the 1986 plea hearing: (1) whether he admonished Applicant as to the deportation consequences of his plea in 1986; and, (2) whether it was his standard practice to always give deportation admonishments before he accepted guilty pleas in 1986. The following information shall be obtained from Rod Ponton, who is currently a county attorney in Presidio county: (1) whether he represented Applicant at the plea hearing in 1986, and, if so, whether Applicant was admonished as to the deportation consequences before he entered his plea; and, (2) whether he believes Applicant's plea was freely and voluntarily entered.

The trial court shall make findings of fact and conclusions of law in regard to Applicant's claim that his pleas were involuntary. Specifically, the trial judge shall make findings of fact as to whether Applicant was admonished as to the deportation consequences of his pleas and, if not, whether Applicant would have pleaded guilty, but for the failure to admonish him as to the deportation consequences. The trial judge shall also make findings of fact as to whether Applicant's TDCJ record shows that any deportation detainers have been lodged against him. 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 claims for habeas corpus relief.

These applications 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 29, 2008

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