## 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-82,426-02

EX P ARTE ROBERT JESS E PA DILLA, JR., Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 06-921-K

368 IN THE 368T H DISTRICT COURT F ROM WILLIAMSON 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 possession with i n t en t to deliver a controlled substance in a drug fre e zone, and was sentenc ed to fiftee n y ea rs ’ imprisonment. He did not appea l his conviction. Applicant contends, among other things, that h is tr ia l c o u n s e l r e n d e red ineffe ctive assistance 1 and that his plea was not knowing ly and voluntarily enter ed. Applicant alleg es that counsel g ave him

This Court has review ed Applica nt’s other c laims, and finds them to be without merit. 12

err oneous advice to the eff ect that he would serve his sentenc e concur rently with a fede ral sentenc e, and that he would be rele ased to parole as soon as he was finished serving h i s fe d er al t i m e. Applicant also alleg es that trial counsel told him that he could rec eive a thirty -five y ear sentenc e if he did not plead g uilty

pursuant to this ag ree ment. The plea admonishments and the judgme nt in the habea s rec ord indicate that Applicant was admonished as to the punishment rang e for a first deg ree felony , and that he pleade d g uilty to a first deg ree felony o ffe nse with no enhanc ements. Howeve r, the offe nse as char g ed in the indictment should have been an “enha nced” second deg ree felony

. The drug f ree zone alleg ation in this case would have had the eff

ect of raising the minimum punishment a nd doubling the available fine, but would not have incr ease d the deg ree of t he offense or the maxim um available punishment. The re is no information in the rec ord re g arding Applicant’s f eder al sentenc e(s)

. 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 shall order trial counsel to r espond to A pplicant’s claims of ineffe ctive 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 cou rt elec ts to hold a hearing , it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial co u rt s hall appoint an attorney to repre sent Applicant a t the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court s h al l m ake finding s of fac t and conclusions of law as to whether the perf ormanc e of Applicant’s trial counsel was defic ient and, if so, whether cou n s el ’s defic ient3

perf ormanc e prejudice d Applicant. The trial court shall also make finding s of fac t and conclusions of law as to whether Applicant’s g uilty plea was knowing l y an d voluntarily enter ed with a full understanding of the nature and conseque nces of that plea. The trial court shall also make any other finding s of fa ct and c onclusions of law that it dee ms releva nt and appr opriate to the dispositi on of Applicant’s c laim for habe as cor pus relief

. This application will be held in abey ance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of this o rd er . A s u p plemental transcr ipt containing all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hear ing 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 t he date of t his order

. Any extensions of ti me shall be obtained f

rom this Court.

Filed: January

14, 2015 Do not publish