Martinez, Fuenay G.

• Court: Court of Criminal Appeals of Texas
• Decided: January 27, 2016
• Docket: WR-84,369-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-84,369-01

EX PARTE FUENAY G. MARTINEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 764045-B IN THE 176TH DISTRICT COURT FROM HARRIS 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 engaging in

organized criminal activity and sentenced to fifteen months’ imprisonment. He did not appeal his

conviction.

Applicant contends, among other things, that he was denied his right to counsel under the

Sixth Amendment because plea counsel had been suspended and was not eligible to practice law in

Texas on March 12, 1998, when Applicant pleaded guilty.

Applicant has alleged facts that, if true, might entitle him to relief. Cantu v. State, 930 2

S.W.2d 594 (Tex. Crim. App. 1996); 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 may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

Applicant appears to be represented by counsel. If he is not and 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 him at the hearing.

TEX . CODE CRIM . PROC. art. 26.04.

We may raise laches on our own motion, Ex parte Smith, 444 S.W.3d 661 (Tex. Crim. App.

2014), and will do so in this case. The trial court shall give Applicant the opportunity to respond and

explain his delay in filing this application. After reviewing his response, the trial court shall make

findings of fact and conclusions of law as to whether Applicant’s claim is barred by the doctrine of

laches. The trial court shall also make further findings and conclusions as to whether (1) Applicant

was denied his right to counsel because plea counsel had been suspended and was ineligible to

practice in Texas when Applicant pleaded guilty, and (2) Applicant was represented by counsel at

his adjudication of guilt proceeding. The trial court shall also order the District Clerk to forward a

copy of Applicant’s removal proceedings to this Court. The trial court shall 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 3

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: January 27, 2016 Do not publish