Echaverria-Gutierrez, Irving

• Court: Court of Criminal Appeals of Texas
• Decided: March 10, 2021
• Docket: WR-92,354-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,354-01

EX PARTE IRVING ECHAVERRIA-GUTIERREZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 18-05-0146-CRA-A IN THE 218TH DISTRICT COURT FROM ATASCOSA COUNTY

Per curiam.

ORDER

Applicant was convicted of aggravated kidnapping and sentenced to eighteen years’

imprisonment. He did not appeal his conviction. 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 was ineffective for numerous reasons. Among other

things, Applicant alleges that he does not speak English and that trial counsel failed to communicate

with him in Spanish. Applicant also alleges that counsel were ineffective “on appeal,” but it does

not appear that notice of appeal was filed in this case. The habeas record contains the trial court’s

certification showing that Applicant had the right to appeal, but that certification is not signed or acknowledged by Applicant.

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 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 supplement the habeas record with a copy of the trial docket and any

orders appointing counsel. 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 make findings and conclusions as to whether Applicant was advised of his right to appeal, and

if so whether he indicated a desire to appeal. 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,

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: March 10, 2021 Do not publish