Avalos, Homer Javier ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-84,509-02
EX PARTE HOMER JAVIER AVALOS , Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 20120D06030-120-02 IN THE 120TH DISTRICT COURT
FROM EL PASO 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 sexual assault
and sentenced to seven years’ imprisonment. Applicant’s direct appeal was dismissed. Avalos v.
State, No. 08-15-00005-CR (Tex. Crim.—El Paso Nov. 4, 2015)(not designated for publication).
Applicant contends that his trial counsel rendered ineffective assistance because: (1) counsel
denied Applicant the right to testify; (2) counsel refused to participate in plea negotiations with the
State; (3) counsel failed to put on a defense by failing to call witnesses, failing to introduce phone
records from the complainant to Applicant, failing to subpoena the hospital doctor to show that the
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complainant refused a rape kit examination, and failing to object to a pair of panties that were
submitted into evidence, even though they were never tested for DNA; and, (4) a conflict of interest
existed because, during counsel’s representation, counsel’s wife, who is Applicant’s daughter, filed
for divorce.
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).
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
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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