Alfaro, Eduardo Enrique

• Court: Court of Appeals of Texas
• Decided: June 2, 2016
• Docket: WR-85,011-02
• Status: Published

Opinion

WR-85,011-01,02,03,04 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/2/2016 11:01:05 AM Accepted 6/2/2016 11:21:01 AM WR-85,011-01, WR-85,011-02, WR-85,011-03, WR-85,011-04 ABEL ACOSTA CLERK

EX PARTE § IN THE TEXASRECEIVED § COURT OF CRIMINAL APPEALS 6/2/2016 § COURT OF ABEL ACOSTA, CLERK § EDUARDO ENRIQUE ALFARO § CRIMINAL APPEALS

MOTION TO STAY PROCEEDINGS PENDING THE FILING OF EVIDENCE IN THE TRIAL COURT

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

COMES NOW EDUARDO ENRIQUE ALFARO, Applicant, and

respectfully asks this Court to stay the proceedings in this case.

Alfaro’s applications for writ of habeas corpus were filed on October

7, 2015, in the 401st Judicial District Court. Upon the State’s filing of a

reply on March 24, 2016, Alfaro asked the court for time to file a response

before the court made its findings. A response was crucial—in the State’s

reply, the State argued Alfaro had not shown his attorneys were

ineffective in failing to consult with a forensic psychologist as to

mitigation evidence to present at punishment because Alfaro did not

“provide[ ] any evidence of what such testimony would have been.” (Resp.

at 13). But Alfaro’s failure to provide evidence of what a forensic

psychologist would have testified was not knowing—it was a clerical

1 oversight. Alfaro simply forgot to attach his examining forensic

psychologist’s report. Accordingly, Alfaro sought to respond to the State’s

reply with the report attached hereto.

The state was aware of this and, in fact, agreed to Alfaro’s request

to supplement the record with the report. Additionally, counsel spoke to

the Judge of the 401st Judicial District Court, Mark Rusch, and he agreed

to the request. For some indeterminable reason, however, without any

order or notice to either Alfaro or the State, the case was then transferred

to the 199th Judicial District Court. On April 26, 2016, that court without

prior notice to counsel then entered findings and conclusions

recommending Alfaro’s application be denied and forwarded the case to

this Court on May 2, 2016.

Those Findings and Conclusions were prematurely entered. Alfaro

has additional evidence to be submitted and requests a stay to provide

said evidence to the trial court. Accordingly, Alfaro respectfully asks that

this motion be granted.

Respectfully submitted,

/s/ Bruce Anton BRUCE ANTON Bar Card No. 01274700

2 SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road Suite 250 Dallas, Texas 75201 214-468-8100 214-468-8104 (fax)

Attorney for Applicant

Certificate of Service

I, the undersigned, hereby certify that a true and correct copy of the foregoing Motion to Stay Proceedings Pending the Filing of Evidence in the Trial Court was served to the Collin County District Attorney’s Office and the 401st Judicial District Court on June 2, 2016.

/s/ Bruce Anton BRUCE ANTON