Berber, Francisco Castio Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: May 18, 2022
• Docket: WR-92,732-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,732-02

EX PARTE FRANCISCO CASTIO BERBER, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W08-71908-K(A) IN THE CRIMINAL DISTRICT COURT NO. 4 FROM DALLAS COUNTY

Per curiam.

ORDER

Applicant entered an open plea of guilty to aggravated sexual assault of an elderly or disabled

person and was sentenced to life imprisonment. The Fifth Court of Appeals affirmed his conviction.

Berber v. State, No. 05-08-01467-CR (Tex. App. — Dallas Dec. 2, 2010) (not designated for

publication). Applicant filed this application for a writ of habeas corpus in the county of conviction,

and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

The record initially received by this Court appeared to be incomplete, in that it did not

contain copies of various exhibits referenced by Applicant as allegedly having been filed in support

of his application. Furthermore, the record did not contain copies of most of the plea documents in

this case, or of any documents relating to the competency evaluation which is the subject of one of 2

Applicant’s habeas claims.

On July 28, 2021, this Court remanded this case to the trial court to obtain affidavits and

findings addressing Applicant’s allegations. This Court’s remand order included instructions to

supplement the habeas record with “copies any exhibits or memoranda filed by Applicant in

conjunction with his habeas application, and with copies of all written plea papers and any

documents relevant to the competency evaluations and plea proceedings in this case.”

On September 8, 2021, this Court received the supplemental record after remand, which

consisted of an affidavit from trial counsel and the trial court’s findings of fact and conclusions of

law, but did not include any of the other documents specified in this Court’s remand order.

On September 15, 2021, this Court ordered the district clerk to supplement the record by

either forwarding to this Court or certifying in writing that the exhibits to which Applicant refers in

his application, written plea papers from the original plea proceedings, and documents pertaining

to Applicant’s competency evaluation are not part of the record. The clerk was ordered to respond

within thirty days from the date of the order but the clerk has not responded to this Court’s order,

except that on April 4, 2022, this Court received a letter from the district clerk requesting an

unspecified extension of time to further research whether such documents exist.

We therefore remand this application again to the trial court. The trial court shall ensure that

the habeas record is supplemented with copies any exhibits or memoranda filed by Applicant in

conjunction with his habeas application, and with copies of all written plea papers and any

documents relevant to the competency evaluations and plea proceedings in this case. If no exhibits

or memoranda were filed in conjunction with the application, or if no plea papers or documents

relevant to the competency evaluation exist, the trial court shall make findings of fact to that effect. 3

The trial court shall respond within thirty days from the date of this order. Any extensions of time

must be requested by the trial court and obtained from this Court.

Filed: May 18, 2022 Do not publish