Opinion
NO. WR-85,368-01
09-21-2016
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D-1-DC-13-904036-A IN THE 147th DISTRICT COURT FROM TRAVIS COUNTY
Per curiam. Alcala , J., filed a concurring and dissenting opinion in which Johnson , J., joined. 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 life imprisonment. The Third Court of Appeals affirmed his conviction. Gamez v. State, No. 03-13-00302-CR (Tex. App.—Austin June 11, 2015) (not designated for publication).
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because he failed to investigate and contest the legality of his arrest, failed to investigate and examine evidence, failed to investigate and interview witnesses, failed to suppress hearsay statements by witnesses at trial, failed to adequately communicate with Applicant regarding the facts of his case, lied and mislead Applicant regarding the facts of his case, failed to present favorable evidence and make an adequate closing argument, failed to impeach the testimony of the State's witnesses, and failed to file various motions for the defense.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 trial 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). In the appropriate case, the trial court may rely on its personal recollection. Id.
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 the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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: September 21, 2016
Do not publish