Hernandez, Alex

• Court: Court of Criminal Appeals of Texas
• Decided: August 26, 2015
• Docket: WR-83,596-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,596-01

EX PARTE ALEX HERNANDEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 98-428,109-A IN THE 140TH DISTRICT COURT FROM LUBBOCK 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

kidnapping and sentenced to ten years’ imprisonment. He did not appeal his conviction.

While Applicant did not sign the inmate’s verification contained on the 11.07 application

form, he did complete a full inmate declaration verification at the end of his memorandum. The

application is therefore verified and will not be dismissed as non-compliant. Ex parte Rendon, 326

S.W.3d 221 (Tex. Crim. App. 2010). 2

Applicant contends, among other things, that the judgment improperly states that this

sentence is cumulated when the judge orally pronounced that the sentence was to run concurrently.

Applicant also contends that his trial counsel rendered ineffective assistance by failing to inform him

that he will have the duty to register as a sex offender as a result of this conviction, by coercing him

to plead guilty, and by failing to object to the cumulation of this sentence.

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

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these

circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294

(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court

shall order trial counsel to respond to Applicant’s claim of ineffective assistance of counsel. The

trial court may use any means set out in TEX . CODE CRIM . PROC. art. 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 wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make findings as to whether the oral pronouncement was for this

sentence to be cumulative as stated in the judgment, or concurrent as stated on the docket sheet. The

trial court shall make findings of fact and conclusions of law as to whether the performance of

Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient performance prejudiced

Applicant. The trial court shall also make any other findings of fact and conclusions of law that it

deems relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental transcript containing all 3

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.

Filed: August 26, 2015 Do not publish