Villalovos, Reyes Noel ( 2010 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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  NO. WR-74,313-01

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EX PARTE REYES NOEL VILLALOVOS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 13,300-B IN THE 104TH DISTRICT COURT

FROM TAYLOR COUNTY

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           Per curiam.

O R D E R  

            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 kidnapping and sentenced to thirty years’ imprisonment. The Eleventh Court of Appeals affirmed his conviction. Villalovos v. State, No. 11-00-00193-CR (Tex. App.–Eastland 2001, no pet.).

            Applicant contends the trial counsel rendered ineffective assistance because he failed to investigate whether Applicant voluntarily released the victim in a safe place. Applicant also contends that appellate counsel rendered ineffective assistance because he failed, among other things, to advise Applicant of his right to petition for discretionary review pro se. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. Pursuant to 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 and appellate counsel to respond to Applicant’s claims. 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

            The trial court shall first make findings of fact and conclusions of law as to whether trial counsel rendered ineffective assistance because he failed to investigate whether Applicant voluntarily released the victim in a safe place. The trial court shall then make findings of fact as to whether appellate counsel timely informed Applicant that he has a right to file a pro se petition for discretionary review. 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 claims 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: September 15, 2010

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