Opinion
NO. WR-89,033-01
11-07-2018
EX PARTE CHARLES RAY DIAZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. C-396-W011290-1350578-A IN THE 396TH CRIMINAL DISTRICT COURT FROM TARRANT COUNTY Per curiam. ORDER
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 aggravated assault with a deadly weapon and sentenced to forty-five years' imprisonment. The Second Court of Appeals affirmed his conviction. Diaz v. State, No. 02-15-00020-CR (Tex. App.—Fort Worth July 28, 2016)(not designated for publication).
Applicant alleges, among other things, that counsel was deficient. Following the filing of an affidavit from counsel, findings of fact were signed by a post-conviction magistrate, Mr. Charles P. Reynolds. However, the record does not contain an order from the district court authorizing Mr. Reynolds to make findings of fact. While the Code provides that the "convicting court may appoint an attorney or magistrate to hold a hearing and make findings of fact," it also assumes that the convicting court will either make findings of fact or approve "the findings of the person designated to make them." TEX. CODE CRIM. PROC. art. 11.07 §3(d). Therefore, prior to addressing the allegations raised in Applicant's application, the record should be supplemented with the order authorizing the post-conviction magistrate to preside over the proceedings. The trial court shall also supplement the record with an order approving the findings made by the post-conviction magistrate.
We order the trial court to resolve this issue within 15 days of this order. A supplemental transcript shall be forwarded to this Court within 30 days of the date of this order. Any extensions of time shall be obtained from this Court. Filed: November 7, 2018
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