Opinion
NO. WR-87,182-01
09-13-2017
EX PARTE ROLANDO MEDRANO, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 14-CRF-0124-A IN THE 105TH DISTRICT COURT FROM KLEBERG 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 two counts of aggravated sexual assault of a disabled individual and sentenced to two life sentences, which were ordered to run consecutively. The Thirteenth Court of Appeals affirmed his conviction. Medrano v. State, No. 13-15-00120-CR (Tex. App. — Corpus Christi - Edinburg, Sept. 2, 2016) (not designated for publication).
Applicant contends, among other things, that his trial counsel rendered ineffective assistance because trial counsel failed to object to the omission of language in the jury charge specifically defining the circumstances in which a sexual assault is committed "without consent," failed to present mitigating evidence during the punishment stage, failed to investigate and obtain records of telephone calls and text messages of the complainant and her mother, which according to Applicant would have demonstrated that the accusations were fabricated, and failed to investigate the fact that the detective in charge of the case had previously been a defendant in a civil suit in which Applicant was awarded compensation.
This Court has reviewed Applicant's other claims and finds them to be without merit.
The State in its answer points out that because Applicant had been previously convicted of sexual assault, a life sentence in this case was mandatory under Texas Penal Code Section 12.42(c). Therefore, the State argues that trial counsel cannot have been ineffective for failing to present mitigating evidence at the punishment stage. However, there is no statutory provision permitting consecutive sentences for multiple acts of sexual assault of a disabled individual arising out of the same criminal episode and prosecuted in a single criminal action. There is nothing in the record to indicate that trial counsel objected to the imposition of consecutive sentences in this case.
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 Applicant's claims of ineffective assistance of counsel. Specifically, trial counsel shall state whether he noticed that the jury charge did not contain the statutory definitions of "without consent" as they applied to this case, and if so, why he did not object. Trial counsel shall state whether Applicant advised him that the telephone or text records of the complainant and her mother contained exculpatory evidence, and if so, whether trial counsel attempted to obtain those records. Trial counsel shall state whether Applicant advised him that the detective in charge of the case was involved in a prior civil suit brought by Applicant, and if so whether he investigated any potential conflict arising from such involvement. Trial counsel shall whether he objected to the trial court's imposition of consecutive life sentences, and if not, why not. 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 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 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
Do not publish