             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-86,007-01


                            EX PARTE JOSEPH LOPEZ, Applicant


             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
        CAUSE NO. W13-40586-L IN THE CRIMINAL DISTRICT COURT NO. 5
                           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 entered an open plea of guilty to

aggravated sexual assault of a child, and was sentenced to twelve years’ imprisonment. The Fifth

Court of Appeals dismissed his appeal for want of jurisdiction because notice of appeal was untimely

filed. Lopez v. State, No. 05-16-00284-CR (Tex. App. — Dallas, March 11, 2016) (not designated

for publication).
                                                                                                       2

        Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance

because counsel failed to adequately consult with him prior to trial, failed to investigate or interview

witnesses, failed to show Applicant any of the evidence or discovery, and failed to advise Applicant

regarding the deadline for filing notice of appeal2.

        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. 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 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 was

advised of his appellate rights, and as to whether he expressed a desire to appeal. If Applicant did


        1
            This Court has considered Applicant’s other claims and finds them to be without merit.
        2
         Applicant actually alleges that trial counsel failed to advise him that he had thirty days
after sentencing in which to file a petition for discretionary review. In light of the dismissal of
Applicant’s direct appeal because his pro se notice of appeal was untimely, it is probable that
Applicant is referring to the time period for filing notice of appeal, rather than a petition for
discretionary review.
                                                                                                      3

express a desire to appeal, the trial court shall make findings as to whether appellate counsel was

appointed, and if not, why not. 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: December 7, 2016
Do not publish
