EX PARTE GABRIEL RIOJAS BERNAL (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-72,789-01 
EX PARTE GABRIEL RIOJAS BERNAL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 03-12-9069-CR IN THE 38TH DISTRICT COURT 
FROM MEDINA 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to life imprisonment. The Fourth Court of Appeals affirmed his conviction. Bernal v. State, No. 04-07-00731-CR (Tex. App.-San Antonio 2008, pet. ref'd).

Applicant contends, among other things, that his trial counsel rendered ineffective assistance because he failed to file a timely motion to dismiss on speedy trial grounds and because he advised Applicant that he would be placed on probation if he pleaded no contest. On October 21, 2009, we remanded this application for findings of fact and conclusions of law. On remand, after making findings of fact and conclusions of law, the trial court recommended that we deny relief. We believe, however, that the record is not sufficient to resolve Applicant's claims. The trial court shall order Applicant's 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).

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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

After reviewing trial counsel's response, the trial court shall make further findings of fact as to whether the performance of counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall make specific findings as to why counsel waited forty-eight months before filing a motion to dismiss and whether Applicant wanted to go to trial on the capital murder charges. 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 5, 2010

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