Sepeda, Shane

• Court: Court of Criminal Appeals of Texas
• Decided: June 16, 2021
• Docket: WR-92,711-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,711-01

EX PARTE SHANE SEPEDA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 57,621-A IN THE 47TH DISTRICT COURT FROM POTTER COUNTY

Per curiam. YEARY , J. filed a concurring opinion joined by SLAUGHTER, J.

ORDER

Applicant was convicted of indecency with a child and sentenced to twenty years’

imprisonment. The Seventh Court of Appeals affirmed his conviction. Sepeda v. State, No. 07-08-

0366-CR (Tex. App.—Amarillo Dec. 18, 2009)(not designated for publication). 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 that trial counsel was ineffective because he incorrectly advised him that

the judge could sentence him to probation, causing him to waive his election for the jury to assess

his punishment. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v.

Washington, 466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is 2

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 claim. 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 make findings of fact and conclusions of law as to whether trial counsel’s

performance was deficient and Applicant was prejudiced. The trial court may make any other

findings and conclusions that it deems appropriate in response to Applicant’s claim.

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: June 16, 2021 Do not publish