Reyes, Richard

• Court: Court of Criminal Appeals of Texas
• Decided: May 26, 2021
• Docket: WR-92,657-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,657-01

EX PARTE RICHARD REYES, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2002-148 FROM CALDWELL COUNTY

Per curiam.

ORDER

Applicant entered an open plea of guilty to one count of aggravated sexual assault of a child,

one count of attempted aggravated sexual assault of a child, and one count of indecency with a child

by exposure. He was sentenced to thirty years’ imprisonment for the aggravated sexual assault

count, twenty years’ imprisonment for the attempted aggravated sexual assault count, and ten years’

imprisonment for the indecency with a child count, all running concurrently. The Third Court of

Appeals affirmed in part and reversed in part, determining that the indecency by exposure was

incident to the attempted aggravated assault, and Applicant’s convictions for both counts therefore

violated the prohibition on double jeopardy. Reyes v. State, 139 S.W.3d 448 (Tex. App. — Austin

July 1, 2004) (no pet.). Applicant filed this application for a writ of habeas corpus in the county of 2

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

Applicant contends that his plea was involuntary because trial counsel was ineffective.

Applicant alleges that trial counsel failed to perform an independent investigation, failed to interview

witnesses, failed to file pre-trial motions, failed to secure the assistance of an expert, and induced

Applicant’s plea by telling him that he would receive a life sentence if he did not plead guilty.

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). 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. If counsel is appointed or retained, the trial

court shall immediately notify this Court of counsel’s name.

The trial court shall first ensure that the habeas record is supplemented with all relevant

documents, including the trial docket, any pre-trial motions that were filed and ruled on in this case,

and any written notice of intent to seek enhanced punishment. The trial court shall make findings

of fact and conclusions of law as to whether trial counsel’s performance was deficient and Applicant

would have insisted on a trial but for counsel’s alleged deficient performance. The trial court may

make any other findings and conclusions that it deems appropriate in response to Applicant’s claims.

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 3

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: May 26, 2021 Do not publish