             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                            NOS.
                               WR-82,619-01 AND WR-82,619-02


                        EX PARTE EDWARD HINOJOSA, Applicant


                ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
                       CAUSE NOS. 1055437-A AND 1042235-A
              IN THE 262ND DISTRICT COURT FROM HARRIS COUNTY


       Per curiam.

                                            ORDER

       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 writs of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Upon his pleas of guilty, Applicant was

convicted of possession of cocaine with intent to deliver and bail jumping and was sentenced to

concurrent terms of thirty years’ imprisonment for the cocaine conviction and ten years’

imprisonment for the bail jumping conviction. There were no appeals.

       Applicant argues that his guilty pleas were not voluntary due to the ineffective assistance of

his trial counsel. The trial court entered detailed orders designating issues for each application in

2009 and ordered that affidavits be filed. It does not appear that the ordered affidavits were filed,
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however, and the disputed factual issues were not resolved. Rather, in 2014, the trial court signed

the State’s proposed findings that the applications be dismissed because “[A]pplicant is no longer

confined pursuant to his conviction in the primary case, [so] Article 11.07 is not applicable and

[A]pplicant is not entitled to relief thereunder.” According to the habeas record, the trial court based

its recommendations on affidavits indicating that Applicant is currently on release to parole in both

cases. Parole release, however, still constitutes a restraint on liberty that permits review of

Applicant’s claims. See TEX . CODE CRIM . PROC. art. 11.22 (defining restraint as “the kind of control

which one person exercises over another, not to confine him within certain limits, but to subject him

to the general authority and power of the person claiming such right”).

        According to Applicant, a sheriff’s deputy stopped him for speeding but never issued a

citation. Applicant claims there was no evidence showing he was speeding, and he argues the

sheriff’s stopping him was not lawful. Then, according to Applicant, a deputy constable arrived at

the stop and immediately searched Applicant’s vehicle without consent on the claim the constable

could smell marijuana. The constable found no marijuana, but he did discover cocaine. Applicant

contends that the constable’s search was not lawful. Applicant indicates that he gave a confession

but that the confession was not voluntary because it was given without the required warnings and

was coerced through a false promise that he would be released after giving it. Applicant was charged

with possessing with intent to deliver cocaine. He failed to appear at a court setting and was

additionally charged with bail jumping. He pled guilty to both offenses without an agreed

recommendation.

        Regarding the cocaine offense, Applicant faults his counsel for not seeking to suppress the

cocaine evidence discovered after an unlawful stop and search of his vehicle. He also faults his
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counsel for not seeking to suppress his confession as involuntary. Regarding the bail jumping

offense, Applicant claims that his trial counsel told him he did not need to appear and did not inform

the trial court of this bad advice at or after the missed setting. To the contrary, Applicant claims that

trial counsel demanded more money for the new bail jumping case. According to Applicant, he

refused to pay and hired new counsel, who represented Applicant at the guilty pleas. He faults first

counsel for giving him bad advice and for not informing the trial court that Applicant was not at fault

for the missed court setting. He claims to have a tape recorded conversation that inculpates first

counsel, and he claims second counsel listened to the recording. He faults second counsel for not

using the tape-recorded conversation in his defense. Applicant also complains that no counsel

discussed with him whether he could appeal the convictions, which appeals Applicant states he

wanted to pursue.

        Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997); Ex parte

Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999); Ex parte Axel, 757 S.W.2d 369 (Tex.

Crim. App. 1988). 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 order both first and second trial counsel to respond to

Applicant’s claims of ineffective assistance, involuntary plea, and denial of appeals. The trial court

may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

        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.
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       The trial court shall make findings of fact and conclusions of law as to whether the

performance of both of Applicant’s trial counsel was deficient and, if so, whether the deficient

performance prejudiced Applicant, whether Applicant’s guilty pleas were voluntary, and whether

Applicant was denied direct appeals through no fault of his own. 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 claims for habeas corpus relief.

       These applications will be held in abeyance until the trial court has resolved the fact issues.

Given the already lengthy delay in these cases, the issues shall be resolved within 60 days of the date

of this order. 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 forwarded to this Court within 90 days

of the date of this order. Any extensions of time shall be obtained from this Court.



Filed: February 25, 2015
Do not publish
