IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 20010D03459-205 IN THE 205TH JUDICIAL DISTRICT COURT
FROM EL PASO 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 aggravated sexual assault of a child and sentenced to life imprisonment. The Eighth Court of Appeals affirmed his conviction. Urquidez v. State, No. 08-03-00209-CR (Tex. App. - El Paso, April 28, 2005, pet. ref'd).
Applicant contends inter alia that his trial counsel rendered ineffective assistance because he failed to consult with Applicant, failed to investigate or present a defense, failed to cross-examine the State's witnesses, and made statements to the panel during voir dire indicating that he believed that Applicant was guilty. The State has filed a general denial, and the trial court has not made findings of fact or conclusions of law.
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.
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 as to whether counsel communicated with Applicant and whether he was prepared for trial. The court shall supplement the habeas record with a copy of the voir dire transcript, and shall make findings as to whether defense counsel told the panel members anything that could be construed as an admission that Applicant was guilty or should be convicted of these charges. The court shall make findings as to whether counsel presented any evidence or testimony for the defense, both at the guilt stage and the punishment stage, and as to whether counsel cross-examined any of the State's witnesses. The trial court shall make findings 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: November 8, 2006
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