IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-86,317-01
EX PARTE HANI MOFIDINASAB, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 120-15-A IN THE 2ND 25TH DISTRICT COURT
FROM GONZALES COUNTY
Per curiam. ALCALA , J., filed a concurring opinion.
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 four counts of
manufacture or delivery of a controlled substance and sentenced to ten years’ imprisonment for each
count. He did not appeal his convictions.
Applicant contends, among other things, that his trial counsel rendered ineffective assistance
because he allowed Applicant to plead to charges that violated double jeopardy.
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
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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 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’s
convictions for Counts I and II constituted multiple punishments for possession with intent to deliver
the same substance. The trial court shall also make findings of fact and conclusions of law as to
whether the performance of Applicant’s trial counsel was deficient. Should the court determine that
counsel’s performance was deficient in not discovering a double jeopardy issue, it shall make further
facts addressing whether Applicant would have insisted on a trial, but for counsel’s error. 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 claims 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.
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Filed: April 26, 2017
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