IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-83,117-01
EX PARTE FRANCISCO ARZATE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1317247-A IN THE 232ND DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
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 imprisonment for life without parole. The First Court of Appeals affirmed his
conviction. Arzate v. State, No. 01-12-01074-CR (Tex. App—Houston [1st Dist.] Dec. 17, 2013) (not
designated for publication).
Applicant contends that his counsel rendered ineffective assistance because counsel failed
to file a petition for discretionary review (PDR). The trial court found that counsel was not
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ineffective because he filed a PDR. However, the PDR was struck and the redrawn petition was
untimely. Arzate v. State, No. PD-0091-14 (Tex. Crim. App. May 7, 2014) (not designated for
publication).
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). 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 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).
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 Applicant
was denied his right to pursue discretionary review due to counsel’s ineffectiveness. 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: May 13, 2015
Do not publish