Noriega, Eliberto Vega

• Court: Court of Criminal Appeals of Texas
• Decided: June 3, 2009
• Docket: WR-71,882-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-71,882-01, WR-71,882-02, AND WR-71,882-03 EX PARTE ELIBERTO VEGA NORIEGA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. 936811, 930148, AND 930147 IN THE 232ND DISTRICT COURT

FROM HARRIS COUNTY

Per curiam.

O R D E R

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual assault and received three life sentences. The First Court of Appeals affirmed his conviction. Noriega v. State, Nos. 01-06-00764-CR, 01-06-00765-CR, 01-06-00766-CR, 2008 Tex. App. LEXIS 543 (Tex. App.-Houston [1^st Dist.] Jan. 24, 2008) (not designated for publication).

In a supplement to his application, filed while the initial application was pending in the trial court, Applicant contends that his trial counsel rendered ineffective assistance because, inter alia, counsel "forced" Applicant to testify during the punishment phase of the trial. Applicant also alleges that this testimony antagonized the jury.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 provide Applicant's trial counsel with the opportunity to respond to Applicant's claims of ineffective assistance of counsel. 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.

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 as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court has made findings of fact and conclusions of law with respect to the allegations presented in Applicant's initial application. 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 claims for habeas corpus relief raised in his supplemental application, filed in the trial court during the pendency of the initial application.

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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: June 3, 2009

Do not publish