EX PARTE IVAN RAMIREZ ESCOBEDO (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-69,969-01

EX PARTE IVAN RAMIREZ ESCOBEDO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W06-85789-U(A) IN THE 291ST JUDICIAL DISTRICT COURT

FROM DALLAS 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 entered an open plea of guilty to aggravated sexual assault of a child, and was sentenced to fifteen years' imprisonment. He did not appeal his conviction.

Applicant contends, inter alia, that his plea was not knowingly and voluntarily entered, because his trial counsel told him that he would get deferred adjudication if he entered an open plea to the trial court. Included in the habeas record is an affidavit from trial counsel, which appears to have been provided in support of a motion for a new trial, in which counsel states that the trial judge stated in open court that she would give Applicant deferred adjudication if he entered an open plea. According to counsel's affidavit, this occurred in his presence, as well as in the presence of the prosecutor and the bailiff, while Applicant was in the holding cell awaiting his jury trial. Counsel informed Applicant of the trial judge's statement, and Applicant decided to enter an open plea to the trial court, waiving his right to a jury trial and a jury determination of punishment. In the trial court's original findings, the trial court found, inter alia, that trial counsel did not provide erroneous information to Applicant, but advised Applicant only that the court would consider deferred adjudication, a finding which appears to conflict with trial counsel's affidavit.

After a pre-sentencing investigation was conducted, Applicant testified at the punishment hearing. Because Applicant's testimony indicated that he was not accepting responsibility for the offense, the trial court sentenced him to fifteen years' imprisonment. The habeas record does not show that a motion for new trial was presented, or that a notice of appeal was filed.

On June 25, 2008, this Court remanded this matter to the trial court for findings of fact as to whether the trial judge ever affirmatively stated that Applicant would receive deferred adjudication if he entered an open plea to the court. On September 3, 2008, this Court received supplemental findings of fact from the trial court, as well as a transcript of the plea proceedings. The trial court finds that no affirmative statement or promise of deferred adjudication was ever made to Applicant. The trial judge states that she told Applicant that she could consider deferred adjudication. Applicant was properly admonished that he could be sentenced to anything within the applicable punishment range. The trial court finds that Applicant's plea was knowingly and voluntarily entered. These findings are supported by the record and are entitled to deference.

The fact remains that trial counsel's affidavit states that he did advise Applicant that he would received deferred adjudication if he entered an open plea, and that this was the reason that Applicant decided to waive his right to a jury trial and a jury determination of punishment. 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). However, because trial counsel's affidavit appears to have been provided in support of a motion for a new trial, and not specifically in conjunction with this habeas writ, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), 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. 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 as to whether Applicant's trial counsel affirmatively told Applicant that he would receive deferred adjudication if he entered an open plea. If counsel did advise Applicant to enter an open plea, the trial court shall make findings as to whether counsel also advised Applicant that he would have to accept responsibility for the offense when he testified at punishment. The trial court shall make findings as to whether a motion for new trial was ever presented, and if so, whether there was a hearing conducted. The trial court shall make findings as to whether Applicant was advised that he could appeal his conviction and sentence, and if so, the trial court shall make findings as to whether Applicant indicated that he wanted to appeal. The trial court shall make findings as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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 1, 2008

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