Nunes, Robert Stephen

• Court: Court of Criminal Appeals of Texas
• Decided: June 6, 2007
• Docket: WR-67,547-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-67,547-01; 67,547-02; 67,547-03 EX PARTE ROBERT STEPHEN NUNES, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. W380-82192-03; W380-82193-03; W380-82194-03

IN THE 380TH DISTRICT COURT FROM COLLIN 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery, sentenced to thirty years' imprisonment; aggravated assault, sentenced to ten years' imprisonment; and aggravated kidnapping, sentenced to forty years' imprisonment. The Fifth Court of Appeals affirmed his convictions. Nunes v. State, Nos. 05-04-01741-CR; 05-04-01741-CR; 05-04-01741-CR (Tex. App.-Dallas, March 28, 2006).

Applicant contends that his trial counsel rendered ineffective assistance because she failed to have Applicant evaluated for competency prior to trial and failed to object to the trial court's failure to admonish Applicant prior to counsel entering Applicant's plea.

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. 1997), 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).

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 shall make findings on whether or not Applicant was evaluated for competency prior to trial and if not, why not. The trial court shall make findings on whether or not Applicant was properly admonished and if his plea was properly entered. If not, the trial court shall make findings on whether or not Applicant was harmed by the court's failure to properly admonish him. 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 claims 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. 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 6, 2007

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