EX PARTE JIMMY ARISTIDES VELASQUEZ (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-73,211-01 
EX PARTE JIMMY ARISTIDES VELASQUEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W05-47491-U(A) IN THE 291st DISTRICT COURT 
FROM DALLAS 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 capital murder and sentenced to life imprisonment. The Fifth Court of Appeals affirmed his conviction. Velasquez v. State, No. 05-06-01714-CR (Tex. App.-Dallas, delivered November 29, 2007, pet. ref'd).

Applicant contends that he was deprived of the effective assistance of trial counsel. In support of his claim, the Applicant has included an affidavit from counsel in which she sets out several reasons why she was not able to effectively represent Applicant at trial. The trial court, after a review of the record and the affidavit of counsel, has recommended that relief be denied. However, the trial court's findings of fact and conclusions of law do not address the following issue:

- Is trial counsel's affidavit, where she plainly states that Applicant was deprived of the effective assistance of counsel, credible?

The Applicant also raises, inter alia, allegations that the State failed to turn over material, exculpatory evidence until after the jury was empaneled, and that he is actually innocent based upon sworn statements subsequently made by his co-defendant in open court. The trial court has entered findings of fact and conclusions of law recommending that both of these claims also be denied. However, the trial court's findings of fact and conclusions of law do not address the following issues:

- Were the 911 tapes in question material and exculpatory?

- If the 911 tapes were material and exculpatory were they turned over to the defense in a timely manner?

- Did the Applicant's co-defendant make a subsequent, sworn statement that Applicant "was not involved" in the commission of this offense?

- If so, is the statement credible and did the statement mean that Applicant was not involved in the commission of this offense as a principal actor, or as a party to the offense?

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 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). 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 as to whether the Applicant was deprived of the effective assistance of counsel at trial, whether the State failed to properly disclose material, exculpatory evidence to the defense, and whether the Applicant is actually innocent. 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: March 3, 2010

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