Martinez, Filemon Jr. ( 2017 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-87,443-01
EX PARTE FILEMON MARTINEZ, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. A4387-11-04-W-1 IN THE 64th DISTRICT COURT
FROM SWISHER 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 of a child and sentenced to fourteen years’ imprisonment. The Seventh Court of Appeals
affirmed his conviction. Martinez v. State, No. 07-11-00448-CR (Tex. App.—Amarillo July 9,
2012) (not designated for publication).
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because
she failed to investigate and secure witness statements, denied Applicant his right to testify, failed
to properly pursue a motion for new trial hearing, failed to object to the admission of extraneous
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offense testimony, and failed to object to perjured testimony by the complainant and cross-examine
the complainant on her lack of truthfulness.
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 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). 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 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
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be requested by the trial court and shall be obtained from this Court.
Filed: October 18, 2017
Do not publish