IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. W99-72252-N(A) IN THE 195TH DISTRICT COURT
FROM DALLAS 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 sixty years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Sanchez v. State, No. 05-00-01680-CR (Tex. App.-Dallas, delivered March 5, 2002).
Applicant contends that his trial counsel rendered ineffective assistance by failing to adequately establish the defenses of alibi and mistaken identity.
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 specifically respond to Applicant's claim of ineffective assistance of counsel. Counsel has presented an affidavit, but the affidavit did not specifically address Applicant's claims. Counsel's supplemental affidavit should state whether or not he knew about the possibility of an alternate suspect, Omar Gallardo. If counsel did know about Mr. Gallardo, the affidavit should state how he obtained such information and why he did not attempt to present such information to the jury. The affidavit should also state counsel's reasons for not presenting additional alibi evidence in the form of delivery slips for dates surrounding the specific date of the incident alleged in the indictment.
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 testimony or evidence was presented that could have raised the issue of an alternate perpetrator. The trial court shall make findings of fact as to whether testimony or evidence was presented, or if the jury was instructed, that the offense could have occurred on a date different from the date alleged in the indictment. The trial court shall make findings as to what alibi evidence was presented and whether it pertained to a single date or included dates surrounding the date alleged in the indictment. 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: May 2, 2007
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