Cantu, Alfredo ( 2014 )

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS  

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  NO. WR-80,796-01

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EX PARTE ALFREDO CANTU, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. CR36131 IN THE 238TH DISTRICT COURT

FROM MIDLAND 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of theft by deception and sentenced to ten years’ imprisonment. The Eleventh Court of Appeals affirmed his conviction. Cantu v. State, 11-11-00190-CR (Tex. App.– Eastland, August 2, 2012).

            Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to conduct any reasonable amount of pretrial investigation and preparation for trial, failed to file a pretrial motion to determine whether or not the State intended to introduce extraneous offenses, failed to interview state and defense witnesses relevant to extraneous offense evidence, failed to file a pretrial motion to challenge the voluntariness of Applicant’s oral statement, and failed to request a jury instruction on the law in its entirety.

            Applicant also contends that appellate counsel rendered ineffective assistance because counsel failed to challenge the legal and factual sufficiency of the evidence.

            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 order trial counsel to respond to Applicant’s claim of ineffective assistance of counsel. The trial court shall also order appellate 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). 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 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. The trial court shall also make findings of fact and conclusions of law as to whether the performance of Applicant’s appellate counsel 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. 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: March 19, 2014

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