## IN THE COURT O F CRIMINA L A PPEA LS OF TEXAS

NOS. WR-82,619-01 A ND WR- 82,619-02

EX P ARTE EDWARD HINOJOSA, App licant

ON AP P LICATIONS FOR WRITS OF HABEAS CORP US CAUSE NOS. 1055437-A AND 1042235- A IN THE 262ND DIST RICT COURT F ROM HARRIS COUNTY

Per curiam . O R D E R P u rs u an t t o the provisions of Article 11.07 of the Texas Code of Criminal Procedur e, th e cler k of the trial court transmitted to this Court t h es e ap p l i ca t i ons for writs of habea s corpus. Ex parte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Upon his pleas of guilty , Applicant was convicted of possession of cocaine with intent to d el i v er and bail jumping and was sentenc ed to

concur rent terms of thirty year s’ imprisonment for the coca ine co n v iction and ten year s’ imprisonment for the bail jumping c onviction. There wer e no appe als. Applicant arg

ues that his guilty pleas wer e not voluntary due to the ineffe ctive assistance of his trial counsel. The trial court enter ed detailed o rd ers designating issues for eac h application in 2009 and order ed that aff idavits be filed. It does not appea r that the order ed aff

idavi t s wer e filed,-2-

howeve r, and the di sputed factual issues wer e not resolved. Rather, in 2014, the t rial court signe d the State’s propose d finding s that the applications be dis missed beca use “[A]ppli cant is no long er confine d pursuant to his conviction in the pri m ary case, [so] Article 11.07 is not applicable and [A] pplicant is not entitled to relief there under.” Acc ording to the habea s rec ord, the trial court based its rec ommendations on aff idavits indicating that Applicant is curr ently on rele ase to parole in both

case s. Parole rele ase, howeve r, s t i l l constitutes a restra int on liberty that permits revie w of Applicant’s claims. See T E X . C O D E C R I M . P R O C . art. 11.22 (def ining restra int as “the kind of control which one person exercises over another , not to confine him within cer tain limit s, but to subject him to the g ener al authority

and powe r of the pe rson claimingsuch right”). Acc ording to Applicant, a s heriff ’s deputy stopped him for speeding but never issued a citation. Applicant claims there was no evidenc e sh o wi n g h e was speeding , and he argues the sheriff ’s stopping him wa s not lawful. Then, acc ording to A pplicant, a deputy constable arrived at the stop and immediately sear ched Applicant’s vehicle without c onsent on the claim the constable could s mell marijuana

. The c onstable found no marijuana , but he did discover coca ine. Appli cant contends that the constable’s sear ch was not lawful. Applica nt indicates that he g ave a confe ssion but that the confession was not voluntary beca use i t was given wi thout the required warning s and

was coer ced through a false promise that he would be rele ased afte r g iving it. Applicant was charg ed with possessing with intent to deliver coca ine. He failed to appea r at a co u rt s ett ing and was additionally charg ed with bail jumping. He pled guilty to both off en s es without an agree d

rec ommendation. Reg arding the cocaine offe nse, Applicant faults his c ounsel for not se eking to suppr ess the

coca ine evidenc e discovere d afte r an u n l awful stop and search of his vehicle. He also faults his-3-

counsel for not seeking to suppress his confe ssion as involun t ary . Reg arding the bail jumping offe nse, Applicant claims that his trial counsel told him he did not need to appea r and did not inform the trial court of this bad advice at or afte r the missed setting. To the contra ry , Applicant claims that trial counsel demande d more money for the new bail jumping case . Acc o rd i n g t o Applicant, he ref used to pay and hired new counsel, who repr esente d Applicant at the guilty pleas. He faults first counsel for g iving him bad advice and for not informing the trial court that Applicant was not at fault for the missed court setting. He cla i m s t o h ave a tape rec orded conver sation that inculpates first counsel, and he claims second counsel listened to the rec ording

. He faults second counsel for not using the tape- rec orded conver sation in his defe nse. Applicant also complains that no coun s el discussed with him whether he could appea l the co n v i ct ions, which appea ls Applicant states he wanted to pur sue. 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 Mo r r o w , 952 S.W .2d 530 (Tex. Crim. App. 1997); Ex parte Patterson , 993 S.W .2d 1 1 4 , 1 1 5 (Tex. Crim. App. 1999); Ex parte Axe l , 757 S.W .2d 369 (Tex. Crim. App. 1 9 88). In 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 appropriate forum for finding s of fac t. The trial court shall order both first and second trial counsel to respond to Applicant’s claims of ineffe ctive assistance , involuntary plea, and denial of appea ls. 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 the trial court elects t o hold a hearing , it shal l d eter mine whether Applicant is indige nt. I f Appl i ca n t is indige nt and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to repre sent Applicant at the hearing. T E X . C O D E C R I M . P R O C . art. 26.04.-4-

The trial court shal l m ak e finding s of fac t and conclusions of law as to whether the perf ormanc e of both of Applicant’s trial counsel was defic ient an d , if so, whether the defic ient perf ormanc e prejudice d Applicant, whether Applican t’s guilty pleas wer e voluntary , and whether Applicant was denied direc t appea ls through no fault of his own. The trial court shall also make any other finding s of fac t and conclusions of law that it deems rele vant and appropriate to the dispositi on of Applica

nt’s claims for ha

beas c orpus re lief. These applications will be held in abeyance until the trial court has resolved the fac t issues. Given the alre ady leng thy delay in these case s, the issues shall be resolved within 60 day s of the date of this order

. A supplemental transcript containing all aff idavits and interrog atories or the transcription of the court repor ter’s notes from any hearing or deposition, along with the trial court’s supplemental finding s of fac t and conclusions of law, shall be forwa rded 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: F ebrua

ry 25, 2015 Do not publish