Covarrubias, Jaime

• Court: Court of Criminal Appeals of Texas
• Decided: January 29, 2020
• Docket: WR-82,509-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,509-03

EX PARTE JAIME COVARRUBIAS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W99-32080-V(C) IN THE 292ND DISTRICT COURT FROM DALLAS COUNTY

Per curiam.

ORDER

Applicant was convicted of capital murder and sentenced to life imprisonment. The Fifth

Court of Appeals affirmed his conviction. Covarrubias v. State, No. 05-00-01387-CR (Tex. App.

— Dallas April 2, 2002) (not designated for publication). Applicant filed an application for a writ

of habeas corpus and an amended application for a writ of habeas corpus in the county of conviction,

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

The trial court appointed a habeas attorney to represent Applicant, and that attorney moved

to dismiss Applicant’s pro se applications so that further investigations could be performed. Because

there was some indication that Applicant did not agree with appointed counsel’s motion to dismiss

or withdraw the application, this Court remanded this matter to the trial court on October 23, 2019, 2

to determine whether Applicant agreed with appointed habeas counsel’s motion to dismiss or

withdraw Applicant’s pro se application, and whether Applicant still wanted to be represented by

habeas counsel.

On January 6, 2020, this Court received the supplemental record after remand. The trial court

apparently held a live hearing on November 21, 2019,1 at which Applicant informed the trial court

that he wants to proceed pro se and does not want to withdraw his pro se application. According to

the trial court’s findings, Applicant “acknowledged that this current application was not compliant

but asked for sufficient time to amend the application.” In fact, the amended application filed by

Applicant on April 23, 2019, and included in the habeas record before remand appears to be

compliant.

Applicant contends, among other things,2 that trial counsel was ineffective because trial

counsel failed to object when the trial court gave the jury a supplemental instruction requiring the

jury to be unanimous in finding Applicant not guilty of capital murder before proceeding to consider

a lesser-included offense, allowed biased jurors to serve on the jury, did not allow Applicant to be

present when responses to jury notes were prepared, failed to impeach a witness using prior

inconsistent statements, failed to object to testimony about extraneous offenses and/or bad acts, and

failed to object to errors in the jury charge.

Applicant also alleges that appellate counsel was ineffective for failing to argue that the trial

court had erred in not allowing the defense to introduce letters written by one of the victims to

1 The supplemental record did not include a transcript of the hearing, as required by this Court’s remand order. 2 This Court has reviewed Applicant’s other claims and finds them to be without merit. 3

Applicant in time to allow the defense to properly use the evidence, failing to argue that the trial

court had erred in denying defense requests for instructions on involuntary conduct at the

guilt/innocence phase and sudden passion at the punishment phase, and failing to argue that biased

jurors had been empaneled.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate

forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial

counsel and appellate counsel to respond to Applicant’s claims. In developing the record, the trial

court may use any means set out in Article 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 wants to be represented

by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX . CODE

CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify

this Court of counsel’s name.

The trial court shall first supplement the habeas record with a transcript of the hearing

conducted on November 21, 2019. The trial court shall make findings of fact and conclusions of law

as to whether trial counsel’s performance was deficient and Applicant was prejudiced. The trial

court shall also make findings of fact and conclusions of law as to whether appellate counsel’s

performance was deficient and Applicant was prejudiced. The trial court may make any other

findings and conclusions that it deems appropriate in response to Applicant’s claims.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things, 4

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: January 29, 2020 Do not publish