Opinion
NO. WR-90,601-01
02-12-2020
EX PARTE JESUS G. HERNANDEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1425518-A IN THE 262ND DISTRICT COURT FROM HARRIS COUNTY Per curiam. ORDER
Applicant was convicted of murder and sentenced to forty-five years' imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Hernandez v. State, No. 14-16-00084-CR (Tex. App.—Houston [14th Dist.] Jul. 17, 2017) (not designated for publication). Applicant filed this amended application for a writ of habeas corpus in the county of conviction. The district clerk forwarded the writ applications to this Court. See TEX. CODE CRIM. PROC. art. 11.07.
Applicant contends, among other things, that trial counsel was ineffective because he did not present Applicant's testimony in support of defensive issues. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Johnson v. State, 169 S.W.3d 223, 225 (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 trial 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.
The trial court shall make findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant was prejudiced. The trial court shall make specific findings of fact addressing Applicant's claim that counsel did not allow him to testify in his own defense. 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: February 12, 2020
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