EX PARTE CYD LAVAN ALEXANDER (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-70,739-04 
EX PARTE CYD LAVAN ALEXANDER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 719413B IN THE 8TH DISTRICT COURT 
FROM HOPKINS COUNTY 
Per curiam.O R D E R

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of bail jumping and failure to appear and sentenced to 20 years' imprisonment. He did not appeal his conviction.

Applicant contends he was never indicted for having committed this offense, was brought to court on a state jail charge, and was not aware that he was pleading guilty to this charge. He alleges that he was never admonished as to the consequences of his plea in accordance with state law. He also alleges that he lacked the intent to commit this offense as he failed to appear because his car had broken down on the way from Dallas to Sulphur Springs. Applicant alleges that he turned himself in as soon as he could.

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 may use any means set out in Tex. Code Crim. Proc. art. 11.07, 3(d) to resolve the fact issues. In the appropriate case, the trial court may rely on its personal recollection. Id. The trial court shall order trial counsel to file an affidavit addressing: (1) whether counsel had an opportunity to discuss the charge in the information with the Applicant before he pleaded guilty; (2) whether counsel believes Applicant understood what charge he was pleading guilty when he entered his plea and, if so, why; (3) whether counsel advised Applicant to plead guilty and, if so, why counsel believed that pleading guilty was in Applicant's best interest; and, (4) whether counsel believes that Applicant's plea was freely and voluntarily entered. Further, the trial court shall instruct the clerk to supplement the record with a copy of the transcription of court reporter's notes from the plea hearing. Finally, the trial court shall instruct the clerk to supplement the record with copies of the judgment and plea papers in any other cause to which Applicant pleaded guilty at the same time he entered his plea in the challenged cause.

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 as to whether Applicant's guilty plea was freely and voluntarily entered. Specifically, the trial court shall make findings of fact as to whether counsel had an opportunity to discuss the charge in the information with the Applicant before he pleaded guilty. The trial court shall make findings of fact as to whether counsel believes Applicant understood what charge he was pleading guilty when he entered his plea. The trial court shall make findings of fact as to whether counsel believes that pleading guilty was in Applicant's best interest. The trial court shall make findings of fact as to counsel believes that Applicant's plea was freely 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.

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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: September 16, 2009

Do not publish