Cruz, Feliciano ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-92,250-01
EX PARTE FELICIANO CRUZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. WR-92,250-01 IN THE 214TH DISTRICT COURT
FROM NUECES COUNTY
Per curiam.
ORDER
Applicant was convicted of one count of murder and one count of tampering with or
fabricating physical evidence. He was sentenced to life imprisonment for the murder and ten years’
imprisonment for the tampering with evidence, to be served concurrently. The Thirteenth Court of
Appeals affirmed his conviction. Cruz v. State, No. 13-17-00683-CR (Tex. App. — Corpus Christi
January 9, 2020) (not designated for publication). Applicant filed this application for a writ of
habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX .
CODE CRIM . PROC. art. 11.07.
Applicant contends that appellate counsel failed to timely inform Applicant that his
conviction had been affirmed and advise him of his right to file a pro se petition for discretionary
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review. On January 19, 2021, the trial court entered an order designating issues. The district clerk
forwarded this application to this Court before the trial court made findings of fact and conclusions
of law. On February 10, 2021, this Court remanded this application to the trial court to complete its
evidentiary investigation and make findings of fact and conclusions of law.
After remand, the State filed an amended answer in which it states that it has now been able
to verify from appellate counsel that Applicant’s allegations “are likely true.” The State recommends
that Applicant be granted an out-of-time petition for discretionary review. The trial court has entered
findings of fact and conclusions of law, finding that appellate counsel was ineffective for failing to
notify Applicant of the outcome of his appeal and his right to file a pro se petition for discretionary
review. The trial court also recommends that relief be granted in the form of an out-of-time petition
for discretionary review. However, this Court generally does not find an attorney ineffective without
providing that attorney with an opportunity to respond by way of affidavit or live testimony.
Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Wilson, 956
S.W.2d 25 (Tex. Crim. App. 1997); Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005).
Accordingly, the record should be developed. The trial court is the appropriate forum for findings
of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order appellate counsel to
respond to Applicant’s claim. In developing the record, the trial court may use any means set out
in Article 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 wants to be represented by counsel, the trial court
shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If
counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s
name.
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The trial court shall make findings of fact and conclusions of law as to whether appellate
counsel timely informed Applicant that his conviction had been affirmed and that he had a right to
file a pro se petition for discretionary review. The trial court shall also determine whether Applicant
would have timely filed a petition for discretionary review but for appellate counsel’s alleged
deficient performance. The trial court may make any other findings and conclusions that it deems
appropriate in response to Applicant’s claims.
The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: March 31, 2021
Do not publish