Rodriguez, Gilbert Iv

• Court: Court of Criminal Appeals of Texas
• Decided: November 3, 2021
• Docket: WR-54,880-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-54,880-02

EX PARTE GILBERT RODRIGUEZ IV, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1052781-A IN THE 183RD DISTRICT COURT FROM HARRIS COUNTY

Per curiam.

ORDER

Applicant was convicted of capital murder and sentenced to life imprisonment. The

Fourteenth Court of Appeals affirmed his conviction. Rodriguez v. State, No. 14–07–00307–CR

(Tex. App.—Houston [14th Dist.], Feb. 19, 2008). 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.

Applicant contends, among other things, that trial counsel was ineffective because he failed

to adequately investigate the case and keep Applicant informed; failed to properly object to Julio

Falcon’s recorded jailhouse phone conversation with his aunt; failed to object on Fourth Amendment

grounds to Applicant’s statement made to homicide detectives and the physical evidence gathered 2

from his home; failed to call several key, available witnesses to testify at trial on his behalf; did not

allow Applicant to testify during trial despite Applicant’s repeatedly requests; and failed to challenge

the State’s argument against the admissibility of the letter from Julio Falcon to Applicant’s father.

Applicant also contends that appellate counsel was ineffective because he failed to file a petition for

discretionary review despite Applicant asking him to do so. Applicant has alleged facts that, if true,

might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Wilson, 956

S.W.2d 25 (Tex. Crim. App. 1997); Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005).

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 both trial and appellate

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). It appears that Applicant is represented by counsel. If the trial

court elects to hold a hearing, it shall determine if Applicant is represented by counsel, and if not,

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. See TEX. CODE CRIM.

PROC. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether, considering

the totality of the circumstances, the common-law doctrine of laches bars equitable relief in this case.

Ex parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013). The trial court shall also make findings

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

was prejudiced. The trial court shall also make findings of fact and conclusions of law as to whether

appellate counsel timely informed Applicant that his conviction had been affirmed and whether

Applicant would have timely filed a petition for discretionary review but for appellate counsel’s 3

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

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: November 3, 2021 Do not publish