Torkizadeh, Victor Aziz

• Court: Court of Criminal Appeals of Texas
• Decided: October 3, 2018
• Docket: WR-88,874-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-88,874-01

EX PARTE VICTOR AZIZ TORKIZADEH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 09-DCR-051353-HC1 IN THE 268TH DISTRICT COURT FROM FORT BEND 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 manslaughter and

sentenced to twenty years’ imprisonment.

The State alleged that Applicant struck and killed the victim with his van on June 23, 2007.

Applicant turned over to police the 2002 van he said he was driving. The 2002 van was tested, but

the results led the investigating detective to conclude that Applicant turned over a different van than

the one he had been driving. The detective detailed at trial why she thought the 2002 van was not

the correct van. The detective also testified that she discovered that Applicant’s family owned a 2003 2

van, and the detective believed it was purchased on April 1, 2007—before the offense—although

she agreed that she did not know what date title was acquired.

According to Applicant, the 2003 van was acquired after he turned the 2002 van over to

police for inspection. Thus, he says, “[the detective] implied to the jury that Applicant gave her a

different van and went on driving the van involved in the accident for 2 years, then had the van

destroyed.” Applicant presents evidence in support. Applicant complains that the State presented

false and/or misleading testimony through the detective to wrongly impugn his character. Ex parte

Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014). He also complains that counsel failed to obtain

available evidence to impeach the detective’s testimony about when the 2003 van was acquired.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

Regarding these claims, Applicant has alleged facts that, if true, might entitle him to relief.

The remaining claims in Applicant’s habeas application either lack merit or are procedurally barred

from habeas review. Ex parte Gardner, 959 S.W.2d 189, 198-200 (Tex. Crim. App. 1996). In these

circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294

(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court

shall order trial counsel to address the ineffective assistance claim regarding the detective’s

testimony and shall gather evidence to resolve whether the detective’s testimony was false and/or

misleading. To do so, the trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07,

§ 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id. If 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

Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04. 3

The trial court shall make findings of fact and conclusions of law regarding the above

discussed ineffective assistance and false-evidence claims. 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 must

be requested by the trial court and shall be obtained from this Court.

Filed: October 3, 2018 Do not publish