Opinion
NO. WR-83,117-01
05-13-2015
EX PARTE FRANCISCO ARZATE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1317247-A IN THE 232ND DISTRICT COURT FROM HARRIS COUNTY Per curiam . ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of capital murder and sentenced to imprisonment for life without parole. The First Court of Appeals affirmed his conviction. Arzate v. State, No. 01-12-01074-CR (Tex. App—Houston [1st Dist.] Dec. 17, 2013) (not designated for publication).
Applicant contends that his counsel rendered ineffective assistance because counsel failed to file a petition for discretionary review (PDR). The trial court found that counsel was not ineffective because he filed a PDR. However, the PDR was struck and the redrawn petition was untimely. Arzate v. State, No. PD-0091-14 (Tex. Crim. App. May 7, 2014) (not designated for publication).
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). In these circumstances, additional facts are needed. 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 findings of fact. The trial court shall order counsel to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d).
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
The trial court shall make findings of fact and conclusions of law as to whether Applicant was denied his right to pursue discretionary review due to counsel's ineffectiveness. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court. Filed: May 13, 2015
Do not publish