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 2012-06

Luna, Eleceo Guadalupe ( 2012 )


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  • IN THE COURT OF CRIMINAL APPEALS

    OF TEXAS



      

    NO. WR-77,588-01

    EX PARTE ELECEO GUADALUPE LUNA, Applicant


    ON APPLICATION FOR A WRIT OF HABEAS CORPUS

    CAUSE NO. W09-00305-S(A) IN THE 282ND DISTRICT COURT

    FROM DALLAS 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 manslaughter and sentenced to twenty-one years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Luna v. State, No. 05-09-00618-CR (Tex. App.-Dallas Nov. 10, 2010) (unpublished).

    Applicant contends that his trial counsel rendered ineffective assistance because, among other things, he advised applicant to reject plea bargain offers, guaranteeing him that he would win at trial.

    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 obtain a response from trial counsel, responding 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 the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. Specifically, the trial court shall make findings addressing whether counsel guaranteed Applicant he would prevail at trial, advising him to reject plea offers "since he would beat the state, and applicant would be found not guilty in a trial by jury." 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

    Filed: June 13, 2012

    Do not publish