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 2012-06

Gonzales, Oscar Jr. ( 2012 )


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  • IN THE COURT OF CRIMINAL APPEALS

    OF TEXAS

    NO. WR-77,788-01

    EX PARTE OSCAR GONZALES, JR., Applicant


    ON APPLICATION FOR A WRIT OF HABEAS CORPUS

    CAUSE NO. B-07-2024-0-CR-B IN THE 156TH DISTRICT COURT

    FROM BEE COUNTY

    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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of aggravated sexual assault of a child and two counts of indecency with a child. He was sentenced to concurrent prison terms of seventy-five years for each aggravated sexual assault, fifteen years for one indecency with a child, and ten years for the other indecency with a child. The Thirteenth Court of Appeals affirmed the convictions in an unpublished opinion. Gonzales v. State, No. 13-08-00410-CR (Tex. App. - Corpus Christi del. Jun. 24, 2010).



    Applicant raises several claims through habeas counsel, including claims of ineffective assistance of trial and appellate counsel. There is no response from either counsel in the record provided to this Court, and there are no findings from the trial court. Applicant has alleged facts that, if true, might entitle him to relief. Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Strickland v. Washington, 466 U.S. 668 (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. The trial court shall order trial and appellate counsel to respond to Applicant's claims of ineffective assistance. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).

    It appears Applicant is represented by habeas counsel. If the trial court elects to hold a hearing, it shall determine whether habeas counsel continues to represent Applicant. If Applicant is not represented by habeas counsel, the trial court 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 him 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 and appellate counsel was deficient and, if so, whether the 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: June 27, 2012

    Do not publish