EX PARTE REYES RUIZ, Applicant (Other)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-77,177-01
EX PARTE REYES RUIZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 59,406-E IN THE 108TH 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession with intent to deliver methamphetamine and was sentenced to twenty years' imprisonment.

Applicant contends his trial counsel rendered ineffective assistance because counsel failed to timely file a notice of appeal. The certification of Applicant's right to appeal indicates the case was a plea-bargained case with no right to appeal, and it also indicates Applicant waived his right to appeal. Applicant acknowledges he signed the appellate waiver, but he complains it is not enforceable because his guilty plea was without an agreed recommendation from the State.

A defendant may knowingly and intelligently waive his right to appeal as part of a plea, even when sentencing is not agreed upon, where consideration is given by the State for that waiver. Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009); see also Ex parte Delaney, 207 S.W.3d 794, 796-97 (Tex. Crim. App. 2006) (holding where a waiver of appeal is entered prior to adjudication and sentencing, has not been bargained for, and the precise terms of punishment are uncertain, the waiver is not made voluntarily, knowingly, and intelligently).

The plea papers state, "Defendant may plead to the court WITHOUT an Agreed Recommendation (Open Plea)" (emphasis and parenthesis in original). The papers also state, "Defendant ... waives and gives up the time provided by law in which to file a ... Notice of Appeal." The writ record does not indicate whether consideration was given by the State for that appellate waiver.

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. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall obtain from trial counsel an affidavit responding to Applicant's claim of ineffective assistance. In addition to obtaining this affidavit, the trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) to resolve disputed factual issues. 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 was denied his right to a meaningful appeal. The trial court shall also make any other findings of fact 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: March 21, 2012

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