IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-86,007-01
EX PARTE JOSEPH LOPEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W13-40586-L IN THE CRIMINAL DISTRICT COURT NO. 5
FROM DALLAS 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 entered an open plea of guilty to
aggravated sexual assault of a child, and was sentenced to twelve years’ imprisonment. The Fifth
Court of Appeals dismissed his appeal for want of jurisdiction because notice of appeal was untimely
filed. Lopez v. State, No. 05-16-00284-CR (Tex. App. — Dallas, March 11, 2016) (not designated
for publication).
2
Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance
because counsel failed to adequately consult with him prior to trial, failed to investigate or interview
witnesses, failed to show Applicant any of the evidence or discovery, and failed to advise Applicant
regarding the deadline for filing notice of appeal2.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 trial counsel to respond to Applicant’s claims 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 and conclusions of law as to whether the
performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient
performance prejudiced Applicant. The trial court shall make findings as to whether Applicant was
advised of his appellate rights, and as to whether he expressed a desire to appeal. If Applicant did
1
This Court has considered Applicant’s other claims and finds them to be without merit.
2
Applicant actually alleges that trial counsel failed to advise him that he had thirty days
after sentencing in which to file a petition for discretionary review. In light of the dismissal of
Applicant’s direct appeal because his pro se notice of appeal was untimely, it is probable that
Applicant is referring to the time period for filing notice of appeal, rather than a petition for
discretionary review.
3
express a desire to appeal, the trial court shall make findings as to whether appellate counsel was
appointed, and if not, why not. 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 must
be requested by the trial court and shall be obtained from this Court.
Filed: December 7, 2016
Do not publish