IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-81,821-01
EX PARTE JOHNNY MARTINEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F-2010-0137-A IN THE 16TH DISTRICT COURT
FROM DENTON 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 sexual assault
of a child and sentenced to ninety-nine years’ imprisonment. The Eighth Court of Appeals affirmed
his conviction. Martinez v. State, No. 08-11-00311-CR (Tex. App. – El Paso, January 23, 2013, pet.
ref’d.).
Applicant contends that his trial counsel rendered ineffective assistance for various reasons,
some of which are facially without merit. However, trial counsel has not responded to Applicant’s
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allegations, and the habeas record is insufficient to address all of Applicant’s claims.
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.
Specifically, trial counsel shall state whether he sought out and interviewed potential witnesses prior
to trial, and whether he considered calling character witnesses to testify on Applicant’s behalf at the
punishment stage. Counsel shall state what advice, if any, he gave to Applicant with regard to
whether Applicant should take the stand and testify on his own behalf, and as to the advantages and
disadvantages of doing so. Counsel shall state whether he prepared Applicant to testify, and if so,
how he did so. Counsel shall state whether he requested or received notice of the State’s intention
to introduce evidence of extraneous offenses or bad acts at the guilt/innocence stage. Counsel shall
state why he did not object when the complainant testified that Applicant had previously been
accused of, or had confessed to, extraneous acts of sexual misconduct, and when a detective testified
that she had investigated Applicant in a prior case. Trial counsel shall state why he elicited
testimony from Applicant that he had been in jail for two years before trial. 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.
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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 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: August 20, 2014
Do not publish
Martinez, Johnny
Combined Opinion