Opinion
NO. WR-87,265-01
09-13-2017
EX PARTE ISLANDIA DOMINGUEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W14-58479-Q(A) IN THE 204TH DISTRICT COURT FROM DALLAS COUNTY
Per cur i am. 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 possession with intent to deliver a controlled substance in a drug free zone and sentenced to fifteen years' imprisonment. The Fifth Court of Appeals dismissed her appeal for want of jurisdiction, because her pro se notice of appeal was untimely filed. Dominguez v. State, No. 05-16-01028-CR (Tex. App. — Dallas, September 19, 2016).
Applicant contends, among other things, that her trial counsel rendered ineffective assistance because trial counsel failed to present evidence that her husband had taken responsibility for the drugs, failed to adequately communicate with Applicant, who does not speak English, and failed to advise Applicant that she had a right to appeal. Trial counsel has provided an affidavit responding somewhat generally to Applicant's allegations and the trial court has entered findings of fact and conclusions of law, but several of the trial court's findings and conclusions are not supported by the record.
This Court has reviewed Applicant's other claims and finds them to be without merit.
Applicant has alleged facts that, if true, might entitle her 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 more specifically to Applicant's claims of ineffective assistance of counsel.
In his previous affidavit, trial counsel stated that he recalled a letter from Applicant's husband in which he took responsibility for the drugs, but noted that such a letter would not have been admissible at trial. Trial counsel shall now explain whether he considered using the letter to negotiate with the State prior to trial, or whether he considered trying to secure the testimony of Applicant's husband in her defense at trial. Trial counsel also noted in his affidavit that the trial court used a certified translator during trial. However, he does not explain how he communicated with Applicant outside the courtroom in preparation for trial. Trial counsel shall now state whether he communicated with Applicant prior to trial, and whether he used a translator to do so, or whether he was able to communicate with Applicant in Spanish.
Finally, trial counsel stated in his previous affidavit that he does not recall advising Applicant of her right to appeal, but that it is his custom to advise all clients of their right to appeal. Trial counsel stated his belief that the trial court advised Applicant of her right to appeal on the record. The trial court finds that although no copy of the trial court's certification of Applicant's right to appeal can be located, the trial docket indicates that Applicant waived her right to appeal. If Applicant did waive her right to appeal, trial counsel shall state whether Applicant was provided with any benefit in exchange for such waiver.
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 first supplement the habeas record with a complete copy of the trial transcripts and the clerk's file in this case. 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 make findings as to whether Applicant was properly advised of her right to appeal, and if she waived that right, what she received in exchange for such a waiver. 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 must be requested by the trial court and shall be obtained from this Court. Filed: September 13, 2017
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