Opinion
NO. WR-86,006-01 NO. WR-86,006-02
05-17-2017
EX PARTE DANIEL HERNANDEZ, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. F-2012-0920-E WHC 1 & F-2012-0923-E WHC 1 IN THE 367TH DISTRICT COURT FROM DENTON 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault and unlawful possession of a firearm and sentenced to sixty-three years' imprisonment on each count. The Second Court of Appeals affirmed his convictions. Hernandez v. State, 470 S.W.3d 862 (Tex. App.—Fort Worth 2015).
Applicant contends, among other things, that trial counsel failed to (1) request a transferred intent instruction in the application portion of the jury charge in his aggravated assault case; (2) object to the admission of evidence that Applicant "shot up the truck on Paco Trail" and request burden of proof and limiting instructions in his aggravated assault case; (3) object when the State elicited the details of Applicant's prior conviction for aggravated robbery; (4) have Applicant stipulate that he had been previously convicted of a felony; and (5) explain to Applicant that he could be convicted of aggravated assault based on either manner and means alleged in the conjunctive in the indictment.
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 the above claims. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 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 wishes to be represented by counsel, the trial court shall appoint an attorney to represent him at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
The trial court shall make further findings of fact and conclusions of law as to whether counsel's conduct was deficient and Applicant was prejudiced. 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 claims for habeas corpus relief.
These applications 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: May 17, 2017
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