EX PARTE JOHN LOPEZ (other)

OF TEXAS

NOS. WR-72,489-01 AND WR-72,489-02

EX PARTE JOHN LOPEZ, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 5020353-A AND 3021616-A IN THE 167TH JUDICIAL DISTRICT COURT

FROM TRAVIS COUNTY

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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted in a single trial of two charges of aggravated sexual assault of two different children and sentenced to sixteen years imprisonment for each charge, to be served concurrently. The Third Court of Appeals affirmed his convictions. Lopez v. State, Nos. 03-06-00647-CR and 03-06-00659-CR (Tex. App. Austin, August 1, 2007, pet. ref d).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel elicited testimony on direct examination from Applicant regarding four prior felony convictions for forgery. Applicant alleges that the State could not have introduced evidence of those prior convictions, because they were remote and irrelevant, and that counsel could have had no strategic reason for introducing such evidence, or for failing to litigate the issue of their admissibility prior to trial. Applicant also alleges that trial counsel was ineffective for failing to research the law regarding severance, and for failing to move to sever the two charges.

Applicant also alleges that counsel was acting under a direct conflict of interest, which adversely affected specific instances of counsel s representation. Specifically, Applicant alleges that his wife advised counsel prior to trial that one of her daughters had been sexually abused by one of the complainants in these cases. Rather than reporting the abuse, counsel allegedly advised Applicant s wife that they should talk about it. At trial, Applicant s wife and her daughters testified about the incident, and the prosecutor expressed doubt that defense counsel would not have reported the incident had Applicant s wife truly informed him of it prior to trial. Defense counsel apparently did nothing to correct the implication that Applicant s wife was lying about telling counsel about the incident, allowing the State to impeach her credibility in general and portray her as a liar.

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. 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 provide Applicant s trial counsel with the opportunity to respond to Applicant s claims 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 as to whether Applicant s prior convictions for forgery would have been admissible at trial if defense counsel had not introduced evidence of those convictions. If the trial court finds that the prior convictions would not have been admissible, the trial court shall make findings as to why defense counsel introduced the evidence of Applicant s prior convictions through Applicant s direct testimony. The trial court shall make findings as to why counsel did not move to sever the two charges. The trial court shall also supplement the habeas record with any portions of the trial transcript pertaining to the allegations made by Applicant s wife and step-daughters that one of the complainants sexually abused one of the step-daughters. The trial court shall make findings as to whether trial counsel admitted on the record that he was aware of this allegation, and if so, why he did not report it or urge Applicant s wife to report it. The trial court shall make findings as to whether defense counsel made any effort to dispel the impression that Applicant s wife was lying about informing him of the allegation prior to trial. The trial court shall make findings as to whether the performance of Applicant s trial attorney 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 claims for habeas corpus relief.

These applications 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 23, 2009

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