             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-84,603-03


                      EX PARTE NOE ARMANDO ARTIGA, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 1333910-B IN THE 182ND DISTRICT COURT
                              FROM HARRIS 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 charged with murder for an

offense committed when he was a juvenile. After the juvenile court waived jurisdiction and certified

him as an adult, Applicant entered an open plea of guilty to the offense, and the trial court sentenced

him to fifty years’ imprisonment. He did not appeal his conviction.

        Applicant contends, among other things, that his trial counsel rendered ineffective assistance

because trial counsel failed to adequately investigate, failed to file a motion to suppress Applicant’s

custodial statement, failing to present available mitigating evidence at punishment, and failing to
                                                                                                       2

adequately advise Applicant regarding his appellate rights and the fact that he could challenge the

juvenile court’s certification proceedings by way of direct appeal. The record contains conflicting

information with regard to whether Applicant retained a right to appeal. The judgment indicates that

Applicant had no right to appeal, whereas the trial court certified that this was not a plea bargain and

that Applicant did have a right to appeal.

        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 to respond to Applicant’s claims of ineffective assistance of counsel.

Specifically, trial counsel shall state whether he investigated the possibility of filing a motion to

suppress Applicant’s custodial statement on the basis that it was taken in violation of the

requirements in the Texas Family Code. Trial counsel shall state whether he considered presenting

mitigation evidence from a clinical psychologist to refute the State’s argument that Applicant lacked

remorse and presented a future danger. Finally, trial counsel shall state what advice he gave to

Applicant with regard to the availability of a motion for new trial and a direct appeal. Trial counsel

shall state whether he was aware of this Court’s opinion in Moon v. State, 451 S.W.3d 28 (Tex.

Crim. App. 2014), at the time of Applicant’s plea, and if so, whether he advised Applicant that an

appeal from the juvenile court’s certification decision must be taken in conjunction with the appeal

from the conviction for which the juvenile was transferred to criminal court. If Applicant was

advised that he had the right to appeal, trial counsel shall state whether Applicant was asked if he

wanted to appeal or wanted appellate counsel to be appointed. The trial court may use any means
                                                                                                        3

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 was deficient and, if so, whether counsel’s deficient

performance prejudiced Applicant. The trial court shall make findings as to whether Applicant

retained the right to appeal after his open plea of guilty, and if so, whether Applicant was advised

that he had the right to appeal, or whether he was advised that he had no right to appeal. If Applicant

was advised that he did have the right to appeal, the trial court shall make findings of fact and

conclusions of law as to whether Applicant indicated a desire to appeal, and whether he was advised

of the availability of appointed counsel for direct appeal. 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 must

be requested by the trial court and shall be obtained from this Court.



Filed:           July 3, 2019
                 4

Do not publish
