Lopez, Luis Rodolfo

• Court: Court of Criminal Appeals of Texas
• Decided: February 13, 2019
• Docket: WR-89,464-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,464-01

EX PARTE LUIS RODOLFO LOPEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W11-60773-M(A) IN THE 194TH DISTRICT COURT FROM DALLAS 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 continuous sexual

abuse of a child and sentenced to forty years’ imprisonment. The Fifth Court of Appeals affirmed

his conviction. Lopez v. State, No. 05-13-01137-CR (Tex. App.—Dallas Feb. 2, 2015)(not

designated for publication).

Applicant contends that his trial counsel rendered ineffective assistance by failing to advise

him that if he was found guilty, any sentence would be served without the possibility of parole and

by failing to request a lesser included instruction for aggravated sexual assault. 2

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 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 of fact as to whether:

(1) the State offered Applicant a plea bargain; (2) counsel, or anyone else, advised Applicant that if

he was convicted, he would have no possibility of parole; (3) if the evidence supported an instruction

on the lesser included offense of aggravated sexual assault and if so, whether counsel requested such

instruction; and (4) whether this application should be barred under the doctrine of laches. 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

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 3

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

be requested by the trial court and shall be obtained from this Court.

Filed: February 13, 2019 Do not publish