## 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-90,378-01

EX P ARTE ARTURO ORTIZ JR., Applicant
ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 12-4-26541-D -1 IN THE 377TH DISTRICT COURT

F ROM VICTORIA COUN TY
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 , 4 1 8 S .W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of delivery of a controlled substanc e and se ntence d to 25 y ear s in prison. He did not appea l his conviction. Applicant allege s that the S tate ex tended a 15-year plea- offe r, t hat Appli cant a cc ep t ed the offe r, that counsel failed to timely rela y Applicant’s a cce ptance of the off er, that the 15-year

pleaoffe r expired, and that Applicant later acc epted a 25-year plea- offe r beca use the 15-year plea- offe r
was no longe r available to him. He complains that his tria l counsel provided ineffe ctive assistance reg arding A

p p li c a nt’ s desire to acc ept the 15-year plea- offe r. Strickland v. W ashington , 466 U.S. 6682

(1984); Lafler v. Cooper , 132 S.Ct . 1376 (2012); Missouri v. Frye , 132 S.Ct . 1399 (2012). Applicant has alleg ed fac ts that, if true, might entitle him to relief

. There is no response from trial counsel addre ssing the claim in the habea s rec ord forwa rded to this Court. The trial court finds, “[T] here are no disputed, previously u nr e s o lve d issues of fac t materia l to the leg ality of [Appli cant’ s] confine ment,” and it re co m mends denying habea s relief

. The finding s and rec ommendation, howeve r, ar e not suppor

ted by the habea s rec ord, and the only issue raised—ine ffe ctive assistanc e of trial counsel—re mains unre s o lv e d

. I n th e s e circ umstances, additional fac ts are neede d. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. C ri m . Ap p . 1 9 60), the trial court is the appropr iate for

um for finding s of fa ct. The trial court shall have Applicant’s trial counsel respond to Applica nt’s claim. To do so, 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 . ar t
. 11.07, § 3(d). In the appropr iate cas e, the t rial court may rely on its persona l rec ollection. Id

. I f t he trial court elects t o hold a hear ing, it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wishes to be represe nted by counsel, the trial court shall appoint an attorney to repr esent Applicant at t he 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 and conclusions of law in r eg ard to A pplicant’s claim for habea s relief

. The trial court s h al l m ak e fi ndings reg arding lache s. Carrio v. State , 992 S.W .2d 486 (Tex. Crim. App. 1999); Ex parte Perez , 398 S.W .3d 206 (Tex. Crim. App. 2013). The trial court may also make any other finding s that it deems rele vant and appropr iate to the dispositi on of Applica

nt’s claim for ha

beas c orpus re lief. This application will be held in abeyance until the trial court has resolved the fac t issues. The issues sh al l b e resolved within 90 day s of this order

. A supplemental transcr ipt containing all3

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, alongwith the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be forwa rded to this Court within 120 day s of the date of this order

. Any extensions of time must be reque sted by

the trial cour

t and shall be obtaine d from this Court.

Filed: October

30, 2019 Do not publish