Opinion
WR-70 237-04
02-02-2022
EX PARTE CARLOS MENDOZA JR., Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1077076-B IN THE 228TH DISTRICT COURT FROM HARRIS COUNTY
Newell, J., not participating.
ORDER
PER CURIAM.
Applicant pleaded guilty to aggravated sexual assault of a child and was sentenced to thirty years' imprisonment. The First Court of Appeals affirmed his conviction. Mendoza v. State, No. 01-09-00051-CR (Tex. App.-Houston [1st], Dec. 3, 2009). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends, among other things, that trial counsel was ineffective because she misled Applicant to believe he would receive deferred adjudication probation if he pleaded guilty and because she failed to present expert testimony and mitigating evidence at the sentencing hearing. The trial court made findings of fact and recommends that the Court deny relief. However, the trial 1 court's findings do not address all of Applicant's ineffective assistance of counsel allegations and were made without the benefit of an affidavit from counsel.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997); Ex parte Cash, 178 S.W.3d 816, 818 (Tex. Crim. App. 2005). In these circumstances, additional facts are needed. 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 ineffective assistance of counsel claims. 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 supplemental findings of fact and conclusions of law as to whether counsel misled Applicant to believe that he would receive deferred adjudication probation if he pleaded guilty and whether, but for counsel's alleged errors, Applicant would not have pleaded guilty and insisted on going to trial. The trial court shall also make further findings of fact and conclusions of law as to whether trial counsel was deficient during the punishment hearing and whether, but for counsel's alleged errors, Applicant would have received a more favorable penalty-phase verdict. 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 supplemental 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 2 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. 3