Velasquez, Marco

• Court: Court of Criminal Appeals of Texas
• Decided: November 2, 2016
• Docket: WR-85,804-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-85,804-01

EX PARTE MARCO VELASQUEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 20080D03877-409-1 IN THE 409TH DISTRICT COURT FROM EL PASO 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 entered an open plea of guilty to

murder, and was sentenced to twenty-five years’ imprisonment. He did not appeal his conviction.

In this application, filed in the trial court on June 8, 2016, and served on the State on June

9, 2016, Applicant contends, among other things, that his plea was involuntary and that he received

ineffective assistance of trial counsel. On July 19, 2016, the trial court signed an order designating

Applicant’s involuntary plea and ineffective assistance of trial counsel issues for resolution.

However, that order was entered more than twenty days after the expiration of the time in which the 2

State was allowed to answer Applicant’s allegations, and was therefore untimely. Tex. Code Crim.

Proc. art. 11.07 §3(d). The district clerk properly forwarded the application to this Court without

waiting for the issues to be resolved.

However, Applicant has alleged facts that, if true, might entitle him to relief. 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. Therefore, we

remand this application to the 409th District Court of El Paso County to allow the trial judge to

complete an evidentiary investigation and enter findings of fact and conclusions of law.

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: November 2, 2016 Do not publish