Persusquia, Bernadette AKA Perusquia, Bernadette

• Court: Court of Criminal Appeals of Texas
• Decided: February 24, 2016
• Docket: WR-82,663-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,663-01

EX PARTE BERNADETTE PERSUSQUIA, AKA BERNADETTE PERUSQUIA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2009CRN000882-D1 IN THE 49TH DISTRICT COURT FROM WEBB 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 murder and

sentenced to life imprisonment. The Fourth Court of Appeals affirmed her conviction. Perusquia

v. State, No. 04-12-00126-CR (Tex. App. — San Antonio, June 12, 2013) (not designated for

publication).

Applicant contends, among other things,1 that her trial counsel rendered ineffective assistance

1 This Court has reviewed Applicant’s other claims, and finds them to be without merit. 2

for several reasons. On March 4, this Court remanded this matter to the trial court to obtain

additional affidavits and findings addressing Applicant’s allegations. The trial court conducted a

habeas hearing on July 15, 2015, at which extensive testimony and arguments were heard.

Following the habeas hearing, the trial court entered an order adopting some of Applicant’s proposed

findings of fact and conclusions of law, but rejecting others. The trial court made no specific

recommendation as to whether Applicant should be granted a new trial or a new punishment hearing.

Some of the findings of fact and conclusions of law adopted and rejected by the trial court

appear to be inconsistent. Specifically, with regard to Applicant’s claim that trial counsel was

ineffective at the guilt/innocence stage for failing to establish that Applicant was aware of specific

acts of violence by the victim against his former wife, Anna Perusquia, and that this awareness

materially affected Applicant’s apprehension of danger when she shot the victim, the trial court finds

that Anna Perusquia’s testimony would have been admissible had Applicant testified that she was

aware of these acts at the time she shot the victim. The trial court finds that the exclusion of this

testimony substantially contributed the jury’s rejection of Applicant’ self-defense claim.

Nevertheless, the trial court finds that trial counsel’s failure to provide an available, legally sufficient

basis for the admissibility of the testimony did not fall below the applicable objective standard for

reasonable performance, and that there is not a reasonable probability that Applicant would not have

been convicted of murder but for trial counsel’s failure. The trial court concludes that the evidence

would have been admissible to establish that Applicant was reasonably in fear of the victim, and

concludes that Applicant was denied reasonably effective assistance of trial counsel in this regard.

These findings and conclusions appear to be contradictory.

The trial court shall make additional findings of fact and conclusions of law or enter an order 3

clarifying its previous findings of fact and conclusions of law, and making specific findings and

conclusions as to whether trial counsel was ineffective at the guilt/innocence stage of trial, and at the

punishment stage of trial. The trial court shall make a recommendation as to whether Applicant is

entitled to a new trial, a new punishment hearing, or both. 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.

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

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: February 24, 2016 Do not publish