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Ex parte Gutierrez

Court of Criminal Appeals of Texas

January 29, 2014

EX PARTE ROGELIO GUTIERREZ, Applicant

Do not publish

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 1175222, 1175223 IN THE 178 TH DISTRICT COURT FROM HARRIS 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 sexual assault of a child and aggravated sexual assault of a child and sentenced to twenty and fifty years' imprisonment, respectively. The First Court of Appeals affirmed his convictions. Gutierrez v. State, Nos. 01-09-00939-CR & 01-09-00940-CR, (Tex. App.—Houston [1 st Dist.] Nov. 10, 2010) (unpublished).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel did not advise him of his right to testify, did not allow him to testify, and unilaterally opted for punishment by the court rather than consulting with Applicant and advising him that he could choose to have the judge or jury assess punishment.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Rock v. Arkansas, 483 U.S. 44, 50-53 (1987); 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 claims of ineffective assistance of counsel. 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.

The trial court shall 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 make specific findings as to whether counsel informed Applicant of his right to testify and whether counsel prevented Applicant from testifying against Applicant's wishes. Should the trial court find that Applicant was wrongly prevented from testifying, it shall make specific findings addressing whether Applicant was harmed under Strickland. The trial court shall also make specific findings under Strickland as to whether Applicant was properly advised of his options for punishment. 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.

These applications 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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