## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-84,742-01

EX P ARTE GUSTAVO MEDINA -YAN EZ, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 14-10-14889A IN THE 506TH DIST RICT COURT

F ROM WALLER COUNTY

Per curiam . O R D E R Pursuant to the provisi o n s o f Ar t icle 11.07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant pleade d g uilty to driving while intox icated a

nd was sente nced to f

ive y ear s’ imprisonment. He did not appea l his conviction. I n a single g round, Applicant contends that trial counsel led him to believe that his sentenc e would not be ag g ravated. He explains that a deadly wea pon finding in the judgme nt is aff ecting his parole elig ibilit y

date. SeeT E X . G O V ’ T C O D E § 508.145(d)( 1). On April 13, 2016, we rema nded this application and direc ted the trial court to order counsel to respond. We also di rec ted t he trial c ourt to determine whether counsel’s c onduct was de ficient2

and Applicant was prejudice d. On rema nd, counsel filed a sworn aff idavit, and the trial court made finding s of fa ct and c onclusions of law a nd rec ommended that we deny relief

. We believe that the rec ord is not sufficie nt to resolve Applicant’s claim. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); Ex parte Patterson , 993 S.W .2d 114, 115 (Tex. Crim. App. 1999). In these circ ums t ance s, additional fac ts are ne eded. A s we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the tria l court is the appr opriate f orum for f

indings of f

act. The trial court sha ll order trial counsel to file a second response and explain whether s h e l ed Ap p l i ca nt to believe that his sentenc e would not be ag g ravated. The trial court may use any means set out in T E X . C O D E C R I M . 1 P R O C . art. 11.07, § 3(d)

. I f t he trial court elects t o hold a hearing , it shall deter mine whether Ap p l icant is indige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial court shall appo i n t an attorney to repre sent him at the hea ring . T E X . C O D E C R I M . P R O C . art. 26.04. The t ri al co u rt shall make further finding s of fac t and conclusions of law as to whether counsel’s conduct was d ef i cient and Applicant would have insisted on a trial but for counsel’s alleg ed defic ient conduct. The trial court shall also make any other finding s of fac t and conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s claim for habea s corpus r elief. This application will be held in abeyance until the trial court has resolved the fac t issues. The

Be cause of the de adly

wea pon finding in the judgme nt, Applicant’s sente nce is 1 “ag g ravated,” a

nd he will not be elig ible for pa role until he ser

ves half of

his sentence , without consideration of g ood conduct time. T E X . G O V ’ T C O D E § 508.145(d)( 1). An attorney ’s def icient advice on parole elig ibilit y may rende r a de fenda

nt’s guilty

plea involuntary

. Ex parte Moussazadeh , 361 S.W .3d 684 (Tex. Crim. App. 2012).3

issues shall be resolved within 90 day s of this order

. A supplemental tr an s cr i p t co n taining all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hearing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be for war ded to this Court withi n 120 day s of the date of this order. A ny extensions of t ime must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: Oc tober 5, 2016 Do not publish