Sanchez, Jesus David ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-62,331-02

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EX PARTE JESUS DAVID SANCHEZ, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 01-CR-200-G IN THE 404TH DISTRICT COURT FROM CAMERON COUNTY

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   Per curiam.



O R D E R  

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3. Applicant was convicted of four counts of aggravated sexual assault and punishment was assessed at confinement for twenty-three years and a $5,000 fine. This conviction was affirmed on appeal, Sanchez v. State, No. 13-02-453-CR (Tex. App. - Corpus Christi, delivered August 6, 2004, no pet.)  

Applicant contends that his trial counsel was ineffective in failing to challenge counts in the indictment which were barred by limitations or which alleged acts which did not constitute an offense at the time they were committed. Applicant also contends his convictions in two of the counts were for acts which were not defined as offenses until after they were committed. The trial court has entered an order designating issues to be resolved, but the district clerk has erroneously submitted this application before the court has entered any findings of fact.

The trial court has determined that additional facts need to be developed, and we agree. This cause is remanded to the trial court for resolution of those issues.

Following the receipt of additional information the trial court should make findings of fact as to: whether any counts of the indictment were barred by limitations and, if so, whether counsel objected to those allegations prior to trial; what evidence supporting any barred counts was presented at trial; whether counsel objected to evidence supporting any counts barred by limitations; whether any such evidence was otherwise admissible; whether counsel made any objections to indictment counts V and VII; and whether any evidence was presented that the acts alleged in those counts either occurred after August 31, 1997 or involved penetration of the complainant's mouth rather than mere contact. The trial court should also make any further findings of fact and conclusions of law which it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application for post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. ⁽¹⁾ A supplemental transcript containing any affidavits, exhibits, or transcription of the court reporter's notes from any evidentiary hearing, 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. ⁽²⁾

DELIVERED: December 7, 2005

DO NOT PUBLISH

1. ¹ In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

2.

² Any extensions of this time period should be obtained from this Court.