Rivera, Randolph Nededog

• Court: Court of Criminal Appeals of Texas
• Decided: June 24, 2009
• Docket: WR-72,064-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-72,064-01 & -02 EX PARTE RANDOLPH NEDEDOG RIVERA, Applicant

ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. 13,222 & 13,223 IN THE 47TH DISTRICT COURT

FROM RANDALL 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of indecency with a child and sentenced to two terms of twenty years' imprisonment. The Seventh Court of Appeals affirmed his convictions. Rivera v. State, Nos. 07-04-00022-CR & 07-04-00023-CR (Tex. App.-Amarillo, Sept. 22, 2004, no pet.).

Applicant contends, among other things, that his trial counsel rendered ineffective assistance because he failed to request that the State elect which incident it was relying on. In a sworn affidavit, trial counsel responded that he decided not to request an election because he believed Applicant's offenses in Potter County would be jeopardy barred. The trial court made findings of fact and conclusions of law and recommended that this Court deny relief. Specifically, the trial court concluded that trial counsel made a reasonable strategic decision not to request an election. But Applicant was not charged with and tried for committing indecency with a child in Potter County. As trial counsel recognized at trial, the offenses committed in Potter County were extraneous offenses. The Double Jeopardy Clause protects against, among other things, a second prosecution for the same offense after conviction. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). It does not protect against a second prosecution simply because extraneous offense evidence was introduced in an earlier proceeding.

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). Accordingly, the trial court shall make further findings of fact and conclusions of law as to whether the performance of Applicant's counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make findings of fact as to whether Applicant could have been indicted in Randall County for the Potter County offenses. 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 claim for habeas corpus relief.

Applicant appears to be represent by counsel. If he is not and 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

These applications will be held in abeyance until the trial court makes further findings and conclusions. 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 24, 2009

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