EX PARTE BOBBY PEREZ (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-75,547-01

EX PARTE BOBBY PEREZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 00-10-8344-B-1-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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of Aggravated Assault and sentenced to life imprisonment. He did not appeal his conviction.

Applicant contends that his trial counsel rendered ineffective assistance, that he was denied his right to appeal, and that the trial court should have ordered, sua sponte, further psychiatric evaluations. He asserts that he was displaying bizarre behavior in court and that the trial judge ordered a psychiatric evaluation, resulting in him being prescribed and taking Ativan and Doxepin. He claims that these drugs caused him to suffer from amnesia and that he does not remember and could not participate in his trial. He further asserts that the trial court ordered that he wear a stun belt during trial and that he not speak unless he had been asked a question and had consulted with counsel. Applicant also claims that he was denied his right to appeal. He states that the trial court inquired regarding his desire to appeal but that he answered "no" in accordance with what trial counsel instructed him to say. Applicant argues, however, that there was no strategic reason to give such advice after a jury found him guilty and sentenced him to life in prison, especially given that he was under the influence of the psychoactive medication, and that counsel never properly advised him regarding the appeal.

There is no affidavit from trial counsel responding to Applicant's assertions of ineffective assistance, and there are no findings from the trial court regarding the ineffective assistance claims, the claim regarding Applicant's right to appeal, and the claim that the trial court should have sua sponte ordered further psychological evaluation. 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 claims of ineffective assistance and shall order him to file an affidavit doing so. Additionally, in resolving the issues, the trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d), and 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, whether Applicant was denied his right to appeal, and whether the court should have sua sponte ordered further psychological evaluation. 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: September 14, 2011

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