Diaz, Charles Ray

• Court: Court of Criminal Appeals of Texas
• Decided: November 7, 2018
• Docket: WR-89,033-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,033-01

EX PARTE CHARLES RAY DIAZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. C-396-W011290-1350578-A TH IN THE 396 CRIMINAL DISTRICT COURT FROM TARRANT 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 aggravated

assault with a deadly weapon and sentenced to forty-five years’ imprisonment. The Second Court

of Appeals affirmed his conviction. Diaz v. State, No. 02-15-00020-CR (Tex. App.—Fort Worth

July 28, 2016)(not designated for publication).

Applicant alleges, among other things, that counsel was deficient. Following the filing of

an affidavit from counsel, findings of fact were signed by a post-conviction magistrate, Mr. Charles

P. Reynolds. However, the record does not contain an order from the district court authorizing Mr. 2

Reynolds to make findings of fact. While the Code provides that the “convicting court may appoint

an attorney or magistrate to hold a hearing and make findings of fact,” it also assumes that the

convicting court will either make findings of fact or approve “the findings of the person designated

to make them.” TEX . CODE CRIM . PROC. art. 11.07 §3(d). Therefore, prior to addressing the

allegations raised in Applicant’s application, the record should be supplemented with the order

authorizing the post-conviction magistrate to preside over the proceedings. The trial court shall also

supplement the record with an order approving the findings made by the post-conviction magistrate.

We order the trial court to resolve this issue within 15 days of this order. A supplemental

transcript shall be forwarded to this Court within 30 days of the date of this order. Any extensions

of time shall be obtained from this Court.

Filed: November 7, 2018 Do not publish