## 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-74,047-05

EX P ARTE P ATRICK

ANTHONY G UARDIOLA, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 1202394-A IN THE 228 DISTRICT COURT th F ROM HARRIS 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 was convicted of failure to comply

as a se x offe nder a

nd sentenc ed to eig ht y ear s’ imprisonment. He did not appea l his conviction. Applicant contends that his trial counsel rende red ineffe ctive assistance and his plea of g uilty

was invol u n tary in this case . I n response to Applicant’s claims, the trial court enter ed a detailed order desig nating issues (ODI ) order ing a response from counsel. The ODI was signe d on May 25, 2011. Approxim ately three and a half y ear s later, the trial court has now enter ed finding s of fac t and conclusions of law rec ommending that relief be dismiss ed beca use the Applic a

nt is “ n o t inc arc erated2

in the prim ary case .” Howeve r, t he trial court’s conclusions of l aw a re in e rror . Acc ording to the habea s rec ord, the trial court has based its rec ommendation on an aff idavit that states the Applicant is curr ently on rele ase to parole in this cause . Howeve r, rele ase to parole is still a restra int in liberty and this application is proper ly befor e this Court. 1 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). I n these circ umstances, additional fac ts are neede d. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropr iate forum for finding s of fac t. The trial court

s h al l o rd er trial counsel to respond to Applicant’s claim of i neff ective assistance of counsel. The trial court may

use any means set out in T E X . C O D E C R I M . 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 Applicant at the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make finding s of fac t an d co n clus ions of law as to whether the perf ormanc e of Applicant ’s t ri al counsel was defic ient and, if so, whether counsel’s defic ient perf ormance prejudice d Applicant. 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 re lief. This application will be held in abey ance until the trial court has resolved the fac t issues.

T E X . C O D E C R I M . P R O C . art. 11.22, whic h define s the term re straint, states: 1 By

“re straint” is meant the kind of c ontrol which one pe rson exercises over a nother, not to confine him within certain limits, but to subject him to the g ener al authority

and powe r of the pe rson claiming such rig ht.3

Given the alre ady leng thy delay in this case , the issues shall be resolved within 60 day s of this order

. A supplemental transcr ipt containing all aff idavits and interrog atori e s o r th e tr a n s c r ip ti o n of the court repor ter’s note s from any

hear ing or

deposition, along with the trial court’ s supplemental finding s of fac t and conclusions of law, shall be for wa rd ed to this Court within 90 day s of the date of this order . Any

extensions of ti me shall be obtaine d from this Court.

Filed: Apr il 22, 2015 Do not publish