Opinion
NO. WR-85,744-01
12-14-2016
EX PARTE FERNANDO RODRIGUEZ JR. , Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2011CRN000531 D3 (A) IN THE 341ST DISTRICT COURT FROM WEBB COUNTY Per curiam. ALCALA, J., filed a concurring opinion. 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 seventy years' imprisonment. The Fourth Court of Appeals affirmed his conviction. Rodriguez v. State, No. 04-13-00187-CR (Tex. App.—San Antonio Sep. 10, 2014) (not designated for publication).
Applicant contends that he was denied due process when one of the prosecutors previously interacted with him as an attorney with the public defender's office during the magistration proceedings. He also alleges that his appellate counsel rendered ineffective assistance because he did not raise this issue after a motion for new trial. According to a letter from the Webb County Public Defender's Office, the trial prosecutor "spoke to [applicant] at the magistration level" as the Public Defender's "magistration attorney."
Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Spain, 589 S.W.2d 132, 134 (Tex. Crim. App. 1979); Strickland v. Washington, 466 U.S. 668 (1984). 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 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).
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 specific findings of fact determining whether the prosecutor spoke with Applicant as a member of the Public Defender's Office "at the magistration level," and if so, whether those communications were covered by the attorney-client privilege. The trial court shall also make findings of fact and conclusions of law as to whether the performance of Applicant's appellate 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: December 14, 2016
Do not publish