Opinion
NO. WR-85,780-01 NO. WR-85,780-02
01-25-2017
EX PARTE LARRY MENDOZA, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 1059050-A & 1059051-A IN THE 177TH DISTRICT COURT FROM HARRIS 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 two counts of possession with the intent to deliver a controlled substance and was sentenced to fifty years' imprisonment on each count. The Fourteenth Court of Appeals affirmed his convictions. Mendoza v. State, Nos. 14-06-01015-CR & 14-06-01016-CR (Tex. App.—Houston [14th Dist.] June 12, 2008) (not designated for publication).
Applicant contends, among other things, that trial counsel rendered ineffective assistance because he failed to investigate whether Applicant was incompetent. The trial court found that Applicant presented no evidence that he was incompetent. According to an excerpt from the presentence investigation report in the record, Applicant completed a psychological evaluation in 2001, his IQ was determined to be 64, and he was classified as "mildly mentally retarded."
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 may order trial counsel to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d).
Applicant appears to be represented by counsel. If he is not and the trial court elects to hold a second 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.
After reviewing the presentence investigation report in the record, the trial court shall make further findings of fact and conclusions of law as to whether counsel was deficient for not investigating Applicant's competency and whether 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 claim 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: January 25, 2017
Do not publish