Diaz, Nelson Garcia

• Court: Court of Criminal Appeals of Texas
• Decided: September 7, 2022
• Docket: WR-94,036-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,036-01

EX PARTE NELSON DIAZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1555099-A IN THE 228TH DISTRICT COURT FROM HARRIS COUNTY

Per curiam.

ORDER

Applicant was convicted of burglary of a habitation and sentenced to thirty-two years’

imprisonment. This Court affirmed his conviction on a petition for discretionary review. Diaz v.

State, 632 S.W.3d 889 (Tex. Crim. App. 2021). 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.

Applicant contends that trial counsel were ineffective because they failed to challenge the

validity of the search of his home. 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, § 2

3(d). The trial court shall order trial counsel to respond to Applicant’s claim. 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 make findings of fact and conclusions of law as to whether trial 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 claim.

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,

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: SEPTEMBER 07, 2022 Do not publish