                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS
                                         NO. WR-81,507-03


                             EX PARTE ANDRES MATA, Applicant


              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
        CAUSE NO. F-0401557-QI IN THE CRIMINAL DISTRICT COURT NO. 2
                            FROM DALLAS COUNTY


        Per curiam.

                                              ORDER

        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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual

assault and sentenced to life imprisonment. The Fifth Court of Appeals affirmed his conviction.

Mata v. State, No. 05-05-00504-CR (Tex. App.–Dallas March 26, 2007)(not designated for

publication).

        Applicant contends that his trial counsel rendered ineffective assistance because counsel

failed to object to the omission of “without the consent of the complainant” in the jury charge in two
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out of the three disjunctive theories, improperly advised Applicant not to testify on his own behalf,

failed to subpoena an apartment security guard that could cast doubt as to the veracity of the

testimony of a State’s witness, failed to request a jury instruction on illegally-obtained eyewitness

testimony pursuant to TEX . CODE CRIM . PROC. art 38.23(a), improperly called Applicant’s then-

fiancée to the stand which opened the door to extraneous bad acts, and failed to object to the trial

court’s exclusion of Applicant’s written statement.

       Applicant also contends that his appellate counsel rendered ineffective assistance because

counsel failed to brief on appeal the issue of whether the trial court erred in denying Applicant’s

request to make a backup of the court reporter’s audiotape available to the defense.

       Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 trial counsel and appellate counsel 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).

       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 and conclusions of law as to whether the

performance of Applicant’s trial counsel and appellate counsel was deficient and, if so, whether

counsel’s deficient performance prejudiced Applicant. The trial court shall also make findings as
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to whether the State would be prejudiced by Applicant’s delay in presenting this claim under the

doctrine of laches. 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.

Filed: February 4, 2015
Do not publish
