Guevara, Juan ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-46,493-02

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EX PARTE JUAN GUEVARA, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 29,592-B IN THE 23RD DISTRICT COURT FROM BRAZORIA COUNTY

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   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 murder and sentenced to ninety-nine (99) years' imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Guevara v. State, No. 14-97-00555-CR (Tex. App. - Houston [14^th], September 9, 1999, pet. ref'd).

Applicant contends, inter alia, that the prosecutor withheld favorable evidence and trial counsel rendered ineffective assistance. First, Applicant asserts that the prosecutor withheld the records of an investigation by the Texas Department of Criminal Justice Internal Affairs, including the statement of Anthony Panza, a key State's witness, during counsel's pre-trial investigation, which prevented counsel from investigating and preparing an effective defense. Applicant alleges that Panza's statement during the internal investigation was inconsistent with Panza's trial testimony and so counsel could have impeached Panza with that statement if she had had an opportunity to make effective use of it. He also alleges that the withheld records would have disclosed the names of three witnesses, Armando Arce, Oscar Garey, and Officer Martinez, whose full names were not disclosed to counsel before trial, and so counsel was unable to investigate these witnesses before trial and call them to testify. Alternatively, Applicant asserts that counsel rendered ineffective assistance when she failed to discover the full names of these witnesses, investigate them before trial, and call them to testify, when their testimony would have been inconsistent with Panza's testimony.

Second, Applicant asserts that the prosecutor's belated notice to counsel that Panza would testify, after counsel had attempted to investigate and interview Panza but had been discouraged from doing so by the prosecutor's representations that Panza would not be called to testify, impeded counsel's ability to investigate the case and prepare a defense. Alternatively, Applicant asserts that counsel rendered ineffective assistance because she should have investigated and interviewed Panza as soon as she learned that he would testify.

Third, Applicant asserts that the prosecutor failed to disclose evidence that Panza was favorably treated as a result of his cooperation in this case, which was evidence that tended to show that Panza had a bias or motive to testify favorably for the State. Specifically, Applicant asserts that around the time of Panza's interview with Internal Affairs, Panza submitted a request to the Classification Division for S4 line classification, trusty status, and a move to the general population of a "trusty farm." Panza reminded TDCJ Classification officials that he was cooperating in the investigation of this case, and his request was granted.

Fourth, Applicant asserts that counsel rendered ineffective assistance when she failed to move for a postponement or continuance during trial after Panza testified and the prosecutor disclosed Panza's prior statement. Applicant alleges that as a result counsel was unable to make effective use of the prior statement to investigate and impeach Panza's testimony.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Kimes, 872 S.W.2d 700 (Tex. Crim. App. 1993). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with an opportunity 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 as to whether the prosecutor failed to disclose favorable material evidence and, if the prosecutor delayed disclosure, whether the delay prejudiced the defense. The trial court shall also make findings 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: (1) all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition; (2) the reporter's record of the pre-trial hearing on counsel's motion for continuance; (3) relevant portions of the trial record; and (4) 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: October 3, 2007

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