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Ex parte Rivera

Court of Criminal Appeals of Texas

December 18, 2013

EX PARTE RAFAEL RALPH RIVERA, Applicant

Do not publish

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 17856 IN THE 329TH DISTRICT COURT FROM WHARTON COUNTY

ORDER

Per curiam.

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 aggravated robbery and sentenced to 20 years' imprisonment. He did not appeal his conviction.

Applicant contends that his trial counsel rendered ineffective assistance because trial counsel (1) actively represented conflicting interests, (2) advised him of the wrong punishment range; and, (3) incorrectly advised Applicant that he was eligible for shock probation and would not serve any time.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 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 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.

The trial court shall make findings of fact and conclusions of law as to whether counsel actively represented conflicting interests and whether the conflict had an adverse effect on specific instances of counsel's performance. Cuyler v. Sullivan, 446 U.S. 335 (1980). The trial court shall make findings of fact and conclusions of law as to whether counsel incorrectly advised Applicant of the punishment range and whether he informed Applicant that he would or could receive shock probation. The trial court shall also make findings of fact and conclusions of law as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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.

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 ...


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