Cortez, Jose Roman

• Court: Court of Criminal Appeals of Texas
• Decided: October 24, 2012
• Docket: WR-78,331-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-78,331-01 EX PARTE JOSE ROMAN CORTEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 08-1316-CR IN THE 25TH DISTRICT COURT

FROM GUADALUPE COUNTY

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 one count of aggravated sexual assault and two counts of sexual assault, and sentenced to thirty-five years' imprisonment for each count. The Fourth Court of Appeals rendered a judgment of acquittal for one of the sexual assault counts and affirmed the judgment of conviction for the other counts. Cortez v. State, No. 04-10-00129-CR (Tex. App.--San Antonio 2011, no pet.).

Applicant contends, among other things, that trial counsel failed to object to testimony from a sexual assault nurse examiner and to visit Applicant's property and present evidence that a garage was not on his property.

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 trial counsel to respond to Applicant's claims. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).

Applicant appears to be represented by counsel. If he is not and 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 him 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 trial counsel was deficient and, if so, whether her deficient performance prejudiced Applicant. In making these findings and conclusions, the trial court shall also determine whether a garage was on Applicant's property in 2007. 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 shall be obtained from this Court.

Filed: October 24, 2012

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