EX PARTE WILLIE RODRIGUEZ, JR. (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-69,796-01 
EX PARTE WILLIE RODRIGUEZ, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2005-409.010-A IN THE 140TH DISTRICT COURT 
FROM LUBBOCK COUNTY 
Per curiam.O R D E R

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of indecency with a child by contact and sentenced to twenty years' imprisonment. The Seventh Court of Appeals affirmed his conviction. Rodriguez v. State, No. 07-06-0102-CR (Tex. App. - Amarillo, February 22, 2007, pet. ref'd).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance before trial by failing to investigate relevant punishment evidence before he assured Applicant that counsel could obtain probation for him and advised Applicant to reject a plea offer of ten years' confinement. Applicant also contends that his trial counsel rendered ineffective assistance because the State presented evidence of several offenses on unspecified dates but counsel failed to request an election. Applicant also contends that counsel failed to investigate and interview members of Applicant's family who would have testified that Applicant's father was abusive to him and his siblings and had exposed Applicant to sexual abuse directed at his sisters. Applicant asserts that this information would have been mitigating at punishment and helpful to the defense expert who testified at punishment.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Phillips v. State, 193 S.W.3d 904 (Tex. Crim. App. 2006). 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 provide Applicant's trial counsel with the opportunity 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 and court records. 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 as to whether the performance of Applicant's trial attorney 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: May 21, 2008

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