EX PARTE ANTONIO ALEMAN, JR. AKA KOJAK (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-76,278-01

EX PARTE ANTONIO ALEMAN, JR. AKA KOJAK, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. B-10-2055-0-CR-B IN THE 156TH DISTRICT COURT

FROM BEE 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 unlawful possession of a firearm by a felon, possession of a deadly weapon in a correctional facility, and injury to an elderly person. He was sentenced to twenty years' imprisonment for each conviction. He did not appeal his convictions.

Applicant contends, inter alia, that his plea was involuntary because he was mis-advised by both the trial court and his attorney as to the applicable range of punishment for the injury to an elderly person charge. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (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 obtain a response from Applicant's trial counsel addressing 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 and conclusions of law in regard to Applicant's claims that his plea was involuntary. Specifically, the trial court shall make findings as to the substance of the admonishments from both the trial court and counsel concerning the applicable ranges of punishment applicant faced. The trial court shall also make any applicable findings detailing the terms of any plea agreement between Applicant and the State. 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 and any court documents relating to Applicant's guilty plea 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: September 14, 2011

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