               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                           NO. WR-82,033-03


                       EX PARTE ERNESTO BENAVIDES, JR., Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
               CAUSE NO. 10-CR-00000108-A IN THE 107TH DISTRICT COURT
                              FROM CAMERON 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 this application for a writ of habeas corpus. Ex parte Young, 418

S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of driving while intoxicated and was

sentenced, pursuant to Section 12.44(a) of the Texas Penal Code, to twelve months in county jail. He did

not appeal his conviction.

       Applicant contends that his plea was involuntary because counsel refused to go to trial even though

Applicant wanted to contest the charges. Applicant has alleged facts that, if true, might entitle him to

relief. 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 trial counsel to respond to Applicant’s claims of ineffective assistance of counsel and
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involuntary plea. 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.

         The trial court shall make findings of fact and conclusions of law in regard to Applicant’s claim

that his plea was involuntary. 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 findings as to whether Applicant’s claims are barred by the

equitable doctrine of laches.1 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. 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 120 days of the date of this order. Any extensions of time must be requested by the trial court and

shall be obtained from this Court.



Filed: April 12, 2017
Do not publish




           1
             Before making this determination, the trial court shall give Applicant the opportunity to
   respond and explain his delay. See Ex parte Smith, 444 S.W.3d 661, 670 (Tex. Crim. App. 2014)
   (“An applicant must be afforded this opportunity—irrespective of whether the State alleges the
   delay disadvantages its own position—before a court recommends or concludes that laches
   compels the application’s denial”).
