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Ex parte Perez

COURT OF CRIMINAL APPEALS OF TEXAS
Jul 26, 2017
NO. WR-86,945-01 (Tex. Crim. App. Jul. 26, 2017)

Opinion

NO. WR-86,945-01

07-26-2017

EX PARTE JOSE DIAZ PEREZ, Applicant


ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 18373 IN THE 2ND DISTRICT COURT FROM CHEROKEE 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 murder and sentenced to fifty years' imprisonment. The Twelfth Court of Appeals affirmed his conviction. Perez v. State, No. 12-14-00116-CR (Tex. App. — Tyler, May 29, 2015) (not designated for publication).

Applicant contends, among other things, that his trial counsel rendered ineffective assistance because trial counsel failed to adequately argue that Applicant's statements had been taken in violation of the Vienna Convention, failed to object to improper closing arguments by the prosecutor, failed to obtain a ruling on the defense motion in limine prior to trial, failed to object to errors in the jury charge, and failed to provide case law to support Applicant's claim that his personal writings were improperly seized.

This Court has reviewed Applicant's other claims and finds them to be without merit.

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. 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: July 26, 2017
Do not publish


Summaries of

Ex parte Perez

COURT OF CRIMINAL APPEALS OF TEXAS
Jul 26, 2017
NO. WR-86,945-01 (Tex. Crim. App. Jul. 26, 2017)
Case details for

Ex parte Perez

Case Details

Full title:EX PARTE JOSE DIAZ PEREZ, Applicant

Court:COURT OF CRIMINAL APPEALS OF TEXAS

Date published: Jul 26, 2017

Citations

NO. WR-86,945-01 (Tex. Crim. App. Jul. 26, 2017)