









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-73,187-01


EX PARTE ANDREW MARTINEZ CORTEZ, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1141790D IN THE 372ND DISTRICT COURT

FROM TARRANT 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 failure to comply
with sexual offender registration requirements and sentenced to ten years' imprisonment.  He did not
appeal his conviction.
	Applicant contends that his trial counsel rendered ineffective assistance by failing to properly
advise Applicant as to the proper range of punishment.  Specifically, he claims that his attorney
advised him that he faced a second-degree felony punishment range of two to twenty years because
of a prior conviction for injury to a child used for enhancement, when in fact, he should have only
faced a third-degree felony punishment range of two to ten years because the enhancement paragraph
was invalid. Applicant bases this argument on his interpretation of Texas Code of Criminal
Procedure Article 62.102(c) which provides that a prior registration violation is the means by which
to enhance punishment for the offense of failure to comply with sexual offender registration
requirements.  See Tex. Code Crim. Pro Art. 62.102(c).  
	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 order Applicant's trial counsel to file an affidavit responding to Applicant's claim of ineffective
assistance of counsel.  In addition, 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 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: March 3, 2010
Do not publish
