Artiga, Noe Armando ( 2019 )

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
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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
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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
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