Salazar, John Anthony ( 2010 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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  NO. WR-72,814-02

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EX PARTE JOHN ANTHONY SALAZAR, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 04-00188-S IN THE 282^ND DISTRICT COURT

FROM DALLAS 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 sexual assault and sentenced to life imprisonment. The Fifth Court of Appeals affirmed his conviction. Salazar v. State, No. 05-05-1455-CR (Tex. App.–Dallas, November 14, 2006).

            Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because he failed to preserve error regarding the cross-examination of the complainant on the issue of potentially filing a civil suit against Applicant. The trial court recommends granting relief, but this Court requires more information prior to rendering a decision.

            Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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.

            We note that the habeas judge was not the judge presiding over the trial. After a review of the reporter’s record and the evidence adduced at trial, the trial court shall make findings of fact as to whether the evidence in question was material. The trial court shall also make findings as to whether there is a reasonable probability that the outcome of trial would have been different had the defense been allowed to cross-examine the complainant about a possible civil suit against 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 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 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 20, 2010

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