             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-85,159-01


                     EX PARTE EZEQUIEL NEVELLY RUIZ, Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. W09-23496-M(A) IN THE 194TH DISTRICT COURT
                            FROM DALLAS COUNTY


      Per curiam. ALCALA , J., filed a concurring opinion in which JOHNSON , J., joined.
YEARY , J., filed a concurring opinion in which KEASLER and HERVEY , JJ., joined.


                                              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 originally pleaded guilty to

kidnapping in exchange for six years’ deferred adjudication community supervision. His guilt was

later adjudicated and he was sentenced to ten years’ imprisonment, but he was granted “shock”

probation pursuant to Article 42.12, Section 6(a) of the Texas Code of Criminal Procedure. His

“shock” probation was eventually revoked and he was sentenced to ten years’ imprisonment.

        Applicant contends, among other things, that his counsel rendered ineffective assistance for
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for various reasons. Applicant alleges that his plea (presumably his original plea of guilty) was not

knowingly and voluntarily entered because he was never advised of the difference between deferred

adjudication and “straight” probation. He alleges that had he known that he could receive a sentence

longer than the original period of deferred adjudication, he would have accepted an earlier offer for

the minimum sentence of imprisonment instead of deferred adjudication. The plea papers signed

by Applicant indicate that he was advised that if he received deferred adjudication and was later

adjudicated guilty, the full range of punishment would be available to the trial court. However, there

is nothing in the habeas record to show whether a plea offer involving the minimum prison time was

offered and rejected by Applicant, and if so, whether he was advised by counsel to accept or reject

the offer.

        Applicant alleges that there was a cell phone containing text messages from the complainant

asking Applicant to pick her up, and (according to Applicant) proving that he did not kidnap her.

However, the cell phone could not be found prior to trial, and Applicant therefore “began

considering plea bargains.” Applicant alleges that years later the cell phone was found among his

stored property, and that he now has newly-available evidence of actual innocence.

        Applicant also alleges that his counsel at sentencing was substituted in at the last minute, and

was unprepared for the sentencing proceeding. Applicant alleges that he was denied his right to

appeal, because although he expressed a desire to appeal after sentencing, his attorney did not file

notice of appeal on his behalf.

        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); Ex parte

Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). In these circumstances, additional facts are needed.
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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 Applicant’s original plea

counsel and his counsel at sentencing afer revocation of “shock” probation to respond to Applicant’s

claims of ineffective assistance of counsel.

        Applicant’s original plea counsel shall state whether Applicant was advised of the difference

between deferred adjudication community supervision and “straight” community supervision. Plea

counsel shall state whether the State extended an offer at any time involving the minimum prison

sentence, and if so, whether counsel advised Applicant to accept or reject such offer. Plea counsel

shall also state whether Applicant ever advised counsel of the existence of potentially exculpatory

text messages, and if so, whether counsel took steps to investigate the existence of such text

messages.

        Applicant’s counsel at sentencing after revocation of “shock” probation shall state whether

he had an opportunity to meet with Applicant to discuss the proceeding, and whether he was

prepared for the revocation and sentencing. Counsel shall state whether Applicant was advised of

his right to appeal, and if so, whether Applicant expressed a desire to appeal. If Applicant did

express a desire to appeal, counsel shall state whether he filed notice of appeal on Applicant’s behalf

or advised the sentencing court of Applicant’s desire to appeal, and asked to withdraw from the

representation.

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 first supplement the habeas record with a copy of the certification of the

defendant’s right to appeal in this case. The trial court shall make findings of fact and conclusions

of law as to whether the performance of Applicant’s original plea counsel was deficient and, if so,

whether counsel’s deficient performance prejudiced Applicant. The trial court shall make findings

of fact as to whether exculpatory evidence in the form of text messages on Applicant’s cell phone

has been discovered, and if so, when. The trial court shall make findings of fact as to whether the

performance of Applicant’s counsel at the revocation of his “shock” probation and sentencing was

deficient and, if so, whether counsel’s deficient performance prejudiced Applicant. The trial court

shall make findings as to whether Applicant was denied his right to a meaningful appeal because

Applicant’s sentencing counsel failed to timely file a notice of appeal. 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.

       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: June 29, 2016
Do not publish
