BRAZ, JOHN ALLEN Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: November 26, 2014
• Docket: WR-82,368-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,368-01

EX PARTE JOHN ALLEN BRAZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 23420-422 IN THE 422ND DISTRICT COURT FROM KAUFMAN 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 three counts of

aggravated sexual assault. He was sentenced to thirty years’ imprisonment for two of those counts

and thirty-five years’ imprisonment for the other. The Fifth Court of Appeals affirmed his

conviction. Braz v. State, No. 05-06-00428-CR (Tex. App.—Dallas July 16, 2007)(not designated

for publication).

Applicant contends that his trial counsel rendered ineffective assistance at both the

guilt/innocence and punishment phases of trial. He raises multiple allegations that are detailed in 2

the memorandum attached to his habeas application. An order designating issues was timely signed

by the trial court on March 26, 2010. That order instructed trial counsel to submit an affidavit to

respond to the allegations contained in Applicant’s habeas application. There is no indication that

the affidavit has ever been filed with the trial court.

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 again order trial counsel to respond to Applicant’s claim of ineffective assistance of counsel

and shall obtain such a response. 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 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 3

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: November 26, 2014 Do not publish