Ajvazi, Muhamet

• Court: Court of Criminal Appeals of Texas
• Decided: April 2, 2014
• Docket: WR-80,158-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-80,158-01

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EX PARTE MUHAMET AJVAZI, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1122010 IN THE 8^TH DISTRICT COURT

FROM HOPKINS COUNTY

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            Per curiam.

O R D E R

            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 unlawful possession of a firearm by a felon and sentenced to forty years’ imprisonment. The Sixth Court of Appeals affirmed his conviction. Ajvazi v. State, No. 06-11-00160-CR (Tex. App.–Texarkana October 30, 2012).

            Applicant contends that his counsel rendered ineffective assistance because he failed to challenge the sufficiency of the convictions used for enhancement. He alleges that one of the prior convictions used to enhance this conviction was probated and was never revoked, therefore it was not available for use as an enhancement. Ex Parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978).

            The trial court has made findings that trial counsel properly objected and obtained rulings on those objections, preserving error for appellate review, but that appellate counsel did not raise this claim on appeal. The trial court also found that the enhancement allegation regarding the partially probated sentence should not have been available for use as an enhancement. However, appellate counsel has not responded to Applicant’s claim.

            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 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 additional findings as to whether Applicant had any prior convictions, other than those alleged, which could have been used for enhancement purposes. Ex parte Parrot, 396 S.W.3d 531 (Tex. Crim. App. 2013). 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 may 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 shall be obtained from this Court.

Filed: April 2, 2014

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