EX PARTE RUBEN DAVID VEGA (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-69,839-02 AND WR-69,839-04

EX PARTE RUBEN DAVID VEGA, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. W-54348-01-D AND W-54350-01-D IN THE 320TH DISTRICT COURT FROM POTTER 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of deadly conduct and aggravated assault and sentenced to eight (8) years' confinement on each cause. He did not appeal his convictions.

Applicant contends that counsel was ineffective because he advised Applicant that the charges pending in Randall county would be dismissed as part of his plea bargain agreement in Potter county. 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) in that it shall order counsel to file an affidavit addressing whether he advised Applicant that the charges pending in Randall county (cause nos. 2004-1787-L21974 and 2004-1787-L13688) would be dismissed as part of the plea bargain agreement in Potter county. In the appropriate case, the trial court may rely on its personal recollection. 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 counsel was ineffective. Specifically, the trial judge shall make findings of fact as to whether counsel advised Applicant that the charges pending in Randall county would be dismissed as part of his plea bargain agreement in Potter county. 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.

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: June 11, 2008

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