EX PARTE YOCCIO ACOSTA, Applicant (Other)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NOS. WR-76,482-01, WR-76,482-02, WR-76,482-03 & WR-76,482-04
EX PARTE YOCCIO ACOSTA, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 20100D03951-DCR1-1, 20090D05731-DCR1-1, 20060D01825-DCR1-1 & 20100D00927-DCR1-1

IN THE CRIMINAL DISTRICT COURT #1

FROM EL PASO 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 entered pleas of guilty and true to one charge of burglary of a habitation, one charge of delivery of a simulated controlled substance, a violation of conditions of community supervision in a possession of marijuana case, and one charge of assault with family violence. He was sentenced to three years' imprisonment for the burglary of a habitation charge, the possession of marijuana charge, and the assault charge, and six months' state jail for the delivery of a simulated controlled substance charge, all running concurrently. He did not appeal his convictions.

Applicant contends that his trial counsel rendered ineffective assistance because counsel labored under a conflict of interest when he represented Applicant in these cases, and put the interests of other clients above those of Applicant. Applicant also alleges that counsel was aware that in each case (with the exception of the revocation) that Applicant either had valid defenses to the charges, or that the State had insufficient evidence to prove the charges. However, Applicant alleges that counsel convinced Applicant to plead guilty to the charges with the threat of greater sentences. Applicant also alleges that counsel was aware that there were federal charges pending against Applicant at the time of these state charges, but that counsel failed to advise Applicant of this fact, and failed to advise him of the consequences that these pleas would have in Applicant's federal case.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (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 counsel was aware of any potentially meritorious defenses to these charges, and if so, whether he advised Applicant of those possible defenses. The trial court shall make findings as to whether counsel was serving under an actual conflict of interest during his representation of Applicant in these cases, and if so, whether such conflict affected counsel's performance. The trial court shall make findings as to whether counsel was aware that there were federal charges pending against Applicant at the same time as these charges, and if so, whether he advised Applicant of the possible effect of his pleas in these cases on such federal charges. 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 claims for habeas corpus relief.

These applications 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: October 12, 2011

Do not publish