Garcia, Carlos

• Court: Court of Criminal Appeals of Texas
• Decided: April 29, 2020
• Docket: WR-91,146-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-91,146-01

EX PARTE CARLOS GARCIA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR-16-0668-D-WHC 1 IN THE 22ND DISTRICT COURT FROM HAYS COUNTY

Per curiam.

ORDER

Applicant was convicted of one count of aggravated sexual assault of a child, three counts

of indecency with a child by contact, and two counts of indecency with a child by exposure. He was

sentenced to thirty-five years for count one, fifteen years for count two, ten years for counts three and

four, five years for count five, and ten years, probated for count six. The trial court ordered counts

one, two, five and six to run concurrently and counts three and four to run consecutively. The

Thirteenth Court of Appeals affirmed his conviction. Garcia v. State, No. 13-17-00218-CR (Tex.

App. — Coprus Christi - Edinburg March 28, 2019) (not designated for publication). 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. 2

Applicant contends, among other things,1 that trial counsel was ineffective because trial

counsel failed to call three witnesses to testify at trial. Applicant provides affidavits from those three

proposed witnesses. Although Applicant does not show that their testimony would have been

admissible, it is possible that the proposed witnesses could have provided helpful information to the

defense. 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 claim. Specifically, trial counsel shall state

whether she was provided with the names of potential witnesses by Applicant, and whether she

interviewed and considered presenting testimony from Yeni Sandoval, Tishay Michelle King, and

Jacqueline R. McNutt. 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 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,

1 This Court has reviewed Applicant’s other claims and finds them to be without merit. 3

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: April 29, 2020 Do not publish