Lopez, Isaac Soria

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-81,022-01 & WR-81,022-02

EX PARTE ISAAC SORIA LOPEZ, Applicant

ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS CAUSE NO. C-36,199 IN THE 244TH DISTRICT COURT FROM ECTOR 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 these applications for writs of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of the

offense of murder and sentenced to imprisonment for seventy-five years. The Court of Appeals

affirmed conviction. Lopez v. State, No. 11-10-00257-CR (Tex. App.—Eastland Aug. 2, 2012)

(not designated for publication).

Applicant contends, among other things, that trial counsel rendered ineffective assistance

because he did not discover a toxicology report that showed the decedent had consumed alcohol and cocaine before her death. Applicant has submitted a copy of a toxicology report and a letter

from a forensic pathologist interpreting the report.

Applicant has alleged facts that, if true, might entitle 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 has made findings of fact addressing Applicant’s claims, but neither counsel’s response nor

the court’s findings address the toxicology evidence. The trial court shall order trial counsel to

respond to Applicant’s claim that counsel was ineffective for not discovering the toxicology

report. The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

In the appropriate case, the trial court may rely on its personal recollection. Id.

It appears that Applicant is represented by counsel. If the trial court elects to hold a

hearing, it shall determine if Applicant is represented by counsel, and if not, 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 additional 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 make specific findings as to whether

Applicant was prejudiced by counsel’s failure to discover and utilize the toxicology results in

Applicant’s defense. 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.

These applications 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 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: November 19, 2014 Do not publish