Manzano, Ivan Jose

















IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. WR-71,370-01


EX PARTE IVAN JOSE MANZANO, Applicant


ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 2003-876-C IN THE 54TH DISTRICT COURT

FROM MCLENNAN COUNTY


Per curiam.

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 two counts of aggravated sexual assault of a child and sentenced to ten years' imprisonment on each count, one sentence to run consecutively with the other. The Tenth Court of Appeals affirmed his convictions. Manzano v. State, No. 10-04-323-CR (Tex. App.-Waco, delivered February 15, 2006).

Applicant contends that his trial counsel rendered ineffective assistance because he failed to call numerous witnesses, failed to properly cross examine numerous witnesses, failed to present evidence that would tend to show his innocence, failed to present evidence of other possible perpetrators, failed to allow him to testify on his own behalf, failed to object to hearsay documents, failed to show the jury a videotape of an interview with the complainant and her sister, and failed to strike a juror who personally knew Applicant.

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. 1960), 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).

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 on the reasons that counsel failed to call the witnesses listed in the writ application. The trial court shall make findings as to counsel's trial strategy in the cross examination of the witnesses listed in the application. The trial court shall make findings regarding Applicant's contention that counsel refused to allow him to testify. The trial court shall make findings regarding the specific juror listed in the application and the reasons counsel failed to challenge him. 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: February 11, 2009

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