## 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-80,940-01

EX P ARTE ERNEST O TIRADO F LORES , JR., AK A ERNESTO F LORES TIRADO, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. CR-3072- 04-C(1) IN THE 139T H DISTRICT COURT

F ROM HIDALG O COUNTY

Per curiam . O R D E R Pursuant to the provisions of Article 11.07 of the Tex as C o d e o f 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 conv i ct ed o f b urg lary of a habitation and sente nced to two y ear s’ imprisonment. He did not appea l his conviction. Applicant contends that trial counsel rende red ineffe ctive assistance because she failed to investiga te his case and advise him of the deporta tion conseque nces of a g uilty plea. The trial court made finding s of fac t and conclusions of law and rec ommended that we g rant relief

. On Marc h 12, 2014, we rema

nded this application and direc ted the trial court to state whether its rec ommendation2

was based on counsel’s failure to investigat e, h er advice reg arding deporta tion, or both. We also direc ted the trial c ourt to determine the cre dibilit y of counsel’s testimony and Applicant’s fathe r’s aff id av i t

. Finally , we direc ted the trial court to deter mine whether counsel was defic ient for not investiga ting Applicant’s case and whether Applicant had established that he would have insist ed on a trial but for

counsel’s c onduct. On rema nd, the trial court made further finding s of fac t and conclusions of law. I t conclude d, among other things, that Applicant would have g one to trial if he had been advised o f t h e conseque nces of his plea. This finding is consistent with Applicant’s sworn aff idavit. As he wrote, “I f I had known t h at p l ea d i n g gu ilty to this char g e would have made me an ag g rava ted felon for immigra tion purposes, I never would have had pl ed guilty . I would have taken my case to a jury .” Applicant, howeve r, has no rig ht to relief under Padilla v. Kentucky , 559 U.S. 356 (2010). The rule

announce d in that decisio n i s not retroa ctive on collater al revie w. Ex parte De Los Rey es , 392 S.W .3d 675 (Tex. Crim. App. 2013). We believe that t h e re cord is not sufficie nt to resolve Applicant’s claim. 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. T he trial court may also 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)

. Applican t appea

rs to be repr esente d by counsel. I f he is not and the trial court holds a hear ing, 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 court shall appoint an attorney to repr esent him at the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04.3

The trial court shall deter

mine whether Applicant would have insisted on a trial and pleade d not g uilty but for counsel’s failure to investiga te his case . The trial court shall also make any other finding s of fac t a

nd conclusions of law tha t it deems releva nt and appr opriate to the disposition 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 issue s s h al l b e resolved within 90 day s of this order

. A supplemental 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 forwar ded to this Court within 120 day s of the da te of this order . Any extensions of ti me s hall be obtained f

rom this Court.

Filed: September

17, 2014 Do not publish