EX PARTE OTIGUIO FLORES, JR., AKA OTIQUIO FLORES, JR. (other)

OF TEXAS

NO. WR-74,202-01

EX PARTE OTIGUIO FLORES, JR., AKA OTIQUIO FLORES, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 98-5-3746-A IN THE 24TH JUDICIAL DISTRICT COURT

FROM GOLIAD 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 indecency with a child by contact and sentenced to twenty years imprisonment. The Thirteenth Court of Appeals affirmed his conviction. Flores v. State, No. 13-99-699-CR (Tex. App. Corpus Christi, March 1, 2001).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel refused to allow Applicant to testify on his own behalf, failed to object when Applicant was twice brought into the courtroom in shackles in the presence of the jury, failed to request an instruction limiting the jury s consideration of extraneous offense evidence, and failed to object to improper arguments by the prosecutor during the punishment stage.

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 first supplement the habeas record with copies of the trial transcript, including the guilt/ innocence and punishment stages of trial. The trial court shall make findings of fact as to whether counsel advised Applicant that the decision of whether or not to testify on his own behalf was Applicant s, and if so, whether Applicant changed his mind about his desire to testify between the close of the State s evidence and the close of the defense s evidence.

The trial court shall make findings as to whether the defense made a pre-trial request that the State elect which incident it intended to rely on to prove the charge, and as to whether counsel made a request for a charge limiting the jury s consideration of extraneous offense evidence. If counsel did neither, the trial court shall make findings as to why he did not.

The trial court shall make findings as to whether the prosecutor improperly urged jury to sentence Applicant based on community expectations, and as to whether the prosecutor mis-characterized the effects of a probated sentence during arguments at punishment. If so, the trial court shall make findings as to whether defense counsel objected, and if not, why not.

The trial court shall make findings 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: August 25, 2010

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