             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-74,047-05


                EX PARTE PATRICK ANTHONY GUARDIOLA, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. 1202394-A IN THE 228th 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 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 failure to comply

as a sex offender and sentenced to eight years’ imprisonment. He did not appeal his conviction.

        Applicant contends that his trial counsel rendered ineffective assistance and his plea of guilty

was involuntary in this case. In response to Applicant’s claims, the trial court entered a detailed

order designating issues (ODI) ordering a response from counsel. The ODI was signed on May 25,

2011. Approximately three and a half years later, the trial court has now entered findings of fact and

conclusions of law recommending that relief be dismissed because the Applicant is “not incarcerated
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in the primary case.” However, the trial court’s conclusions of law are in error. According to the

habeas record, the trial court has based its recommendation on an affidavit that states the Applicant

is currently on release to parole in this cause. However, release to parole is still a restraint in liberty

and this application is properly before this Court.1

        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. 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 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.


        1
            TEX . CODE CRIM . PROC. art. 11.22, which defines the term restraint, states:

                  By “restraint” is meant 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.
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Given the already lengthy delay in this case, the issues shall be resolved within 60 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 90 days of the date of this

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



Filed: April 22, 2015
Do not publish
