Opinion
NO. WR-87,508-01
12-06-2017
EX PARTE ARMANDO HERNANDEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR-10-1086-A IN THE 428TH DISTRICT COURT FROM HAYS 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 continuous sexual abuse of a young child and sentenced to life imprisonment. The Third Court of Appeals affirmed his conviction. Hernandez v. State, 03-12-00805-CR (Tex. App.—Austin del. Jan. 30, 2015).
A jury convicted Applicant and assessed punishment. Applicant contends that trial counsel provided ineffective assistance, that he was denied due process by a trial court ruling, and that the statute of conviction is unconstitutional for failing to require jury unanimity and for allowing cruel and unusual punishment.
Regarding the claims that counsel was ineffective, Applicant has alleged facts that, if true, might entitle him to relief; the remaining claims lack merit. 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 ineffective assistance claims and shall resolve the disputed facts. To do so, 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 make findings of fact and conclusions of law in regard to Applicant's claims that trial counsel provided ineffective assistance. 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.
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: December 6, 2017
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