Perez, Roberto Clemente

• Court: Court of Criminal Appeals of Texas
• Decided: December 7, 2022
• Docket: WR-94,051-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,051-01

EX PARTE ROBERTO CLEMENTE PEREZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1062590-A IN THE 185TH DISTRICT COURT FROM HARRIS COUNTY

Per curiam. NEWELL, J. concurs.

ORDER

Applicant was convicted of possession of a controlled substance and sentenced to twenty-five

years’ imprisonment. Applicant filed this application for a writ of habeas corpus in the county of

conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

This application was file-stamped in Harris County on October 9, 2008. An order

designating issues was signed by the trial judge on October 17, 2008. This application was not

received by this Court until September 2, 2022. There is no indication in the record of any action

by the trial court after the order designating issues was signed. Nor is there any indication as to why

this application was pending in Harris County for so long without any action by the clerk or the trial

court. Applicant contends that his trial counsel acted under a conflict of interest because each of the

three co-defendants in his situation were all represented by different members of a three person law

firm, Flood and Flood. He alleges that he was unaware of the situation and did not waive any

conflict. Applicant has alleged facts that, if true, might entitle him to relief. Hill v. Lockhart, 474

U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013). Accordingly, the record

should be developed. The trial court is the appropriate forum for findings of fact. TEX . CODE CRIM .

PROC. art. 11.07, § 3(d).

As a preliminary matter, the trial court shall make findings of fact as to why no action was

taken by the trial court or the clerk between the entry of the order designating issues and the

forwarding of the application to this Court. The trial court shall obtain a response from Applicant

as to whether Applicant still wants to pursue this application, and shall include that response in the

supplemental record. If the trial court is unable to obtain such a response from Applicant, the trial

court shall detail the efforts that were made to obtain a response from Applicant. The trial court shall

then return the application to this Court..

If Applicant indicates that he does want to pursue this application, the trial court shall order

trial counsel to respond to Applicant’s claims. In developing the record, the trial court may use any

means set out in Article 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 wants to be represented by counsel, the

trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art.

26.04.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: December 07, 2022 Do not publish