IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 47903-B IN THE 181ST DISTRICT COURT
FROM POTTER COUNTY
O R D E R
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of conspiracy to commit murder and sentenced to thirty-seven (37) years' imprisonment. The Seventh Court of Appeals affirmed his conviction. Ocanas v. State, No. 07-04-004225-CR (Tex. App. - Amarillo, September 20, 2005, pet. ref'd).
Applicant contends that his trial counsel rendered ineffective assistance because counsel did not object to witnesses' hearsay testimony. Specifically, counsel did not make hearsay or confrontation clause objections to the testimony of Antero Molina, Neely Guest, or Rebecca Cerda describing Ray Placencio's statements to them after the offense; and the testimony of Bobby Gene Reneau and Cynthia Carrasco describing Ricky Gallegos's statements to them after the offense. In addition, Applicant contends that trial counsel failed to request an accomplice witness instruction as to the testimony of Ruben Valadez.
This application is not subject to dismissal as a subsequent application because this Court did not make a final disposition of the initial application challenging this conviction. Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997). Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity 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.
It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if Applicant is represented by counsel, and if not, whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint counsel to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact as to whether the performance of Applicant's trial attorney 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: December 20, 2006
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