EX PARTE MARTIN HERRERA (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-71,601-01 
EX PARTE MARTIN HERRERA, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1993CR1371 IN THE 186TH DISTRICT COURT 
FROM BEXAR 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 plead guilty without a plea agreement, was convicted of injury to an elderly person, and sentenced to twenty years' imprisonment. He did not appeal his conviction.

Applicant contends, inter alia, that trial counsel rendered ineffective assistance because he failed to inform Applicant of the possible deportation consequences of his guilty plea and that he was harmed because he would not have pleaded guilty if he had known he could be deported for this offense. There is no indication in the written plea papers sent to this Court that Applicant was admonished as required by the Texas Code of Criminal Procedure, article 26.13(a)(4). Counsel provided an affidavit in response to Applicant's claims, stating that in 1993 there was no statutory duty to inform the defendant what might happen on any deportation issue. This assertion is incorrect. Id. Counsel did not respond to the ultimate question of whether or not Applicant was informed by counsel or the court of the possible deportation consequences of his plea.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex Parte Cervantes, 762 S.W.2d 577 (Tex. Crim. App. 1988)(overruled in part); Ex Parte Tovar, 901 S.W.2d 484 (Tex. Crim. App. 1994). 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 provide Applicant's trial counsel with another 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 as to whether Applicant was admonished regarding possible deportation consequences pursuant to the Texas Code of Criminal Procedure prior to his plea of guilty. The trial court shall make findings as to whether Applicant has been through removal proceedings since his conviction, is currently facing removal proceedings, or has a detainer lodged with the Texas Department of Criminal Justice by U.S. Immigration and Customs Enforcement. 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: August 19, 2009

Do not publish