## 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-93,549-02

EX P ARTE BENIT O HINOJOS A, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. B-16-2120-0-C R-B-2 IN THE 156TH DIS TRICT COURT F ROM BEE COUNTY

Per curiam . O R D E R Applicant pleaded not g uilty to ag g ravated sexual assault of a child under 6 y ear s and was sentenc ed to 40 y ear s ’ imprisonment. The Thirteenth Court of Appea ls aff irmed his conviction. Hinojosa v. State, No. 13-18-00601- CR (Tex. App.—Corpus Christ i -E dinburg , Fe b. 6, 2020). Applicant filed this application for a writ of habea s corpus in the county of conviction, and the district clerk f

orwa rded it to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. Applicant conte nds that he receive d ineffe ctive assistanc e of c ounsel bec ause tria l counsel failed to advise him about the State’s plea offe rs. App l i ca n t ac k nowledg es that defe nse counsel conveyed plea offe rs for 25 y ear s, 10 y ear s, and 5 y ear s, but he aver s that counsel did not discuss the streng ths and wea

knesses of the case and did not adequately advis e Ap p licant as to whether he2

should plead g uilty

or g o to trial. I nstead, trial counsel mere ly assure d Applicant that the State did not have a

“winnable case .” The ref

ore, A pplicant re

jected the State’s plea offe rs and went to trial. 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 .3 d 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). The trial cour t shall order trial counsel to respond to Applicant’s claim. I n developing the record, the trial court may use any means set out in Article 11.07, § 3(d). I f t he trial court elec ts to hold a hear ing, it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wants to be repr esente d by counsel, the 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 immediately

notify this Court of counsel’s name

. 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 an d Applicant would have insisted on a trial but for counsel’s alleg ed defic ient perf

ormanc e. The trial court may make any other finding s and conclusions that it deems appropr iate in re sponse to Applicant’s c laim. The trial cour t s hall make findings of fac t and conclusions 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, af fidavits, 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.3

Filed: De cembe r 14, 2022 Do not publish