EX PARTE ARSEMIO YBARRA (other)

OF TEXAS

NO. WR-74,651-01

EX PARTE ARSEMIO YBARRA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 2008-206A IN THE 421st DISTRICT COURT

FROM CALDWELL 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 Possession of a Controlled Substance and sentenced to 25 years imprisonment. Applicant appealed his conviction, but the court of appeals found that applicant had no right to appeal and dismissed the appeal for want of jurisdiction. Ybarra v. State, No. 03-09-00554-CR (Tex. App. Austin Oct. 13, 2009)(not designated for publication).

Applicant contends that his trial counsel rendered ineffective assistance and, therefore, rendered his plea involuntary, because his counsel:

a. failed to competently litigate the claim that the affidavit supporting the search warrant presented insufficient indicia of probable cause;

b. failed to competently litigate the claim that the affidavit supporting the search warrant was stale;

c. failed to competently investigate and present applicant s claim of a violation underFranks v. Delaware[, 438 U.S. 154 (1978)]; and

d. failed to competently litigate applicant s motion to allow independent testing of evidence.

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 obtain from Applicant s trial counsel a response to Applicant s claims of ineffective assistance of counsel and involuntary plea. 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 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 claims 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: January 12, 2011

Do not publish