              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-83,953-01


                         EX PARTE MIGUEL GUTIERREZ, Applicant


                ON APPLICATION FOR A WRIT OF HABEAS CORPUS
               CAUSE NO. W-69569-01-C IN THE 251ST DISTRICT COURT
                             FROM POTTER 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 pleaded guilty to the state jail

felony offense of possession of a controlled substance, enhanced to second degree punishment range

using prior sequential felony convictions, and was sentenced to nine years’ imprisonment. He did

not appeal his conviction.

        Applicant contends that his guilty plea was not knowingly and voluntarily entered, because

he pleaded guilty pursuant to erroneous advice from trial counsel. Applicant alleges that trial
                                                                                                      2

counsel advised him that if he did not enter into the plea agreement proffered by the State, he would

be subject to punishment as a habitual felony offender, with a possible sentence of 25 to 99 years’

or life imprisonment if he were convicted at trial.        Because this offense as charged in the

information was a non-aggravated state jail felony, the punishment could not be enhanced beyond

the range of a second degree felony.

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

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 claim of ineffective assistance of counsel.

Specifically, counsel shall state whether he ever advised Applicant that he could be punished as a

habitual felony offender if he went to trial on these charges. 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 as to whether the

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

performance prejudiced Applicant. The trial court shall make findings of fact and conclusions of

law as to whether Applicant’s guilty plea was knowingly and voluntarily entered. 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.
                                                                                                      3

       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 shall

be obtained from this Court.



Filed: November 4, 2015
Do not publish
