## 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-94,077-01

EX P ARTE MARIO ALBERTO S ALGA DO, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 1306437-A IN THE 230TH DIS TRICT COURT

F ROM HARRIS COUNTY

Per curiam . N E W E L L , J., concurre d. O R D E R Applicant p l ea d ed g uilty to ag g rava ted kidnapping and was sentenc ed to twenty y ear s’ imprisonment. He did not appea l his conviction. Applicant filed this application for a writ of habea s corpus in the county of conviction , and the district cler k forwa rded it to this Court

. See T E X . C O D E C R I M . P R O C . art. 11.07. This application was file-stampe d in Har ris County on October 4, 2012. An order desig natin g i s s u es was signe d by the trial judge on Marc h 22, 2013. This application was not

rec eived by this Court until Aug ust 24, 2022. There is no indication in the rec ord of any action by the t rial court afte r t he order designa ting issues was signed. Nor is there any indication as t o why this application was pending in Har ris County for so long without any action by the cler k or the trial2

court. Applicant contends, among other things, that his plea was involuntary beca use trial counsel

coer ced him into acc epting the twenty -y ear plea offe r. Applicant alleg es that trial counsel initially promised Applicant a probate d sentence, then advised Applicant of a five-y ear plea offe r, which Applicant alleg es he acc epted. Applicant alleg es that trial counsel promised to return the following day with plea documents for Applicant to sign, but failed to do so. Applicant alleg es that he did not hear from counse l until a court setting, when counsel intimi dated Applicant by telling him that he would rec eive a life sentenc e if he did not sign for the twenty y ear s on that day

. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Hill v. Lockhart , 474 U.S. 52 (1985); Ex parte Argent , 393 S.W .3d 781 (Tex. Crim. App. 2013). Acc ording ly , the rec ord should be develope d. The trial court is the appropr iate forum for finding s of fac t. T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). As a pre liminary

matter, the tria l court shall make f indings of f

act as to w hy no action wa s taken by the trial court or the cler k betwee n the entry of the order d es i gn at i n g i s sues and the forwa rding of the application to this Court. The trial court shall obtain a response from Applicant

as to whether Applicant still wants to pursue this application, and shall include that response in the supplemental rec ord. I f the trial court is unable to obta in suc h a response from Applicant, the trial court shall detail the eff

orts that wer e made to obtain a response from Applicant. The trial court shall then re turn the applica tion to thi s Court. I f Applicant indicates that he does want to pursue this application, the trial court shall order trial counsel to respond to Applicant’s claims. I n developing the rec ord, the trial court may use any means set out in Article 11.07, § 3(d). I f the trial c ourt elec ts to hold a hearing , it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wants to be repr esente d by counsel, the3

trial court shall appoint counsel to repr esent him at the hear ing. See T E X . C O D E C R I M . P R O C . art. 26.04. I f counsel is appointed or reta ined, the trial court shall i m m ed i at el y notify this Court of counsel’s na

me. The trial court shall first ensure th at the habea s rec ord is supplemented with all rele vant documents, in cl u d i ng copies of any written plea offe rs made by the State in this case , and any acknow ledg ment, acc eptanc e or reje ction of any such offe rs by Applicant, as well as a transcr ipt of the plea pr ocee dings if one exists, and any evidenc e that wa s introduced in support of A pplicant’s plea. The trial court shall make finding s of fac t and conclusions of law as to whether trial counsel’s perf ormanc e was defic ient and Applicant wo u l d have insisted on a trial but for counsel’s alleg ed defic ient perf

ormanc e. The trial court shall also make finding s of fac t and conclusions of law as to whether the State made a five-year plea offe r, and if so, whether trial counsel communicated the offe r to Applicant and whether Applicant told trial counsel that he would acc ept the offe r. The trial court may make a ny other finding s and conclusions that it de ems appropr iate in r esponse to A pplicant’s claims. The trial court shall make findings of fac t and co n clusions of l aw within ninety day s from the date of this order

. The district cler k shall then immediately forwa rd to this Court the trial court’s finding s and conclusions and the rec ord develope d on rema nd, including, among other things, aff idavits, motions, objections, proposed finding s and conclusions, order s, and transcr ipts from hear ings and depositions. See T E X . R. A P P . P. 73.4(b)( 4). Any extensions of time must be reque sted by the trial cour

t and obtained f

rom this Court.

Filed: De cembe r 7, 2022 Do not publish