Opinion
NO. WR-86,551-01
05-17-2017
EX PARTE YARA PEREZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 20100D01057-346-1 IN THE 346TH DISTRICT COURT FROM EL PASO 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 capital murder and injury to a child and sentenced to life without parole and thirty-five years' imprisonment, respectively. The Eighth Court of Appeals affirmed her convictions. Perez v. State, NO. 08-12-00340-CR (Tex. App.—El Paso Aug. 19, 2015) (not designated for publication).
Applicant contends that her appellate counsel rendered ineffective assistance, which deprived her the opportunity to pursue discretionary review.
The trial court has entered findings recommending that relief be granted. However, neither Applicant's pleadings nor the trial court's findings specifically state how counsel erred or how any errors precluded Applicant from pursuing discretionary review. 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 appellate counsel to respond to the claim of ineffective assistance of counsel on appeal. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d).
It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if Applicant is represented by counsel, and if not, 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 Applicant's appellate counsel erred, and whether that error deprived Applicant of her right to pursue discretionary review. The court shall make specific findings addressing whether counsel timely notified Applicant that her appeal was affirmed and of her right to pursue a pro-se petition for discretionary review. Should the court find that counsel would have pursued discretionary review on Applicant's behalf, but for notification from Applicant, the court shall make specific findings addressing why discretionary review was not pursued. 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: May 17, 2017
Do not publish