Resendez, Eustorgio Guzman

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-39,308-07 EX PARTE EUSTORGIO GUZMAN RESENDEZ, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR-003-92-C IN THE 229TH DISTRICT COURT FROM STARR 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of capital murder and sentenced to life imprisonment. The Thirteenth Court of Appeals affirmed his conviction. See Resendez v. State, 860 S.W.2d 605, (Tex. App. -- Corpus Christi, 1993, pet. ref'd). Applicant alleges that he is actually innocent of this offense as State witness Juan Hinojosa has filed an affidavit recanting his trial testimony. Applicant alleges that Hinojosa was the State's key witness and that he would not have been convicted if Hinojosa had not testified against him at his trial. He alleges that the State sponsored Hinojosa's testimony even though the State knew it was false at the time it offered the testimony. Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to investigate whether Hinojosa had any motives to falsely implicate the Applicant which had not been disclosed to the defense. Specifically, Applicant alleges that the State informed the defense that it had reached an agreement with Hinojosa whereby it would not seek the death penalty against Hinojosa if he testified at Applicant's trial. Applicant alleges that counsel would have discovered that Hinojosa received additional concessions for his testimony, which were not disclosed to the defense, if he had investigated further. Applicant also alleges that counsel was ineffective for failing to convey a plea offer of fifteen years' confinement to him before trial. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996); 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 may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) to resolve the fact issues. In the appropriate case, the trial court may rely on its personal recollection. Id. The trial court shall order Applicant's trial counsel to file an affidavit responding to the following: (1) whether counsel investigated whether Hinojosa had a motive to falsely implicate the Applicant at his trial and, if so, shall detail the course of such investigation; (2) whether counsel believes that Hinojosa testified truthfully at Applicant's trial and, if so, shall detail the basis for such a belief; (3) whether counsel believes that the State disclosed all aspects of its plea bargain agreement with Hinojosa to the defense before trial and, if so, shall detail the basis for such a belief; (4) whether counsel disclosed the plea offer of fifteen years' confinement which the State made to the Applicant before trial and, if so, when counsel disclosed the offer. The trial court shall order the Assistant District Attorney who prosecuted this case to file an affidavit responding to the following: (1) whether State had in its possession any evidence which indicated that Hinojosa had a motive to falsely implicate the Applicant when he testified at his trial and, if so, shall detail such evidence; (2) whether the State believes that Hinojosa testified truthfully at Applicant's trial and, if so, shall detail the basis of such belief; (3) whether the State plea bargained with Hinojosa to make him testify at Applicant's trial and, if so, shall detail the terms of such agreement; and, (4) whether the State made any plea offers to the Applicant before trial and if so, shall detail such offers. 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 counsel investigated whether Hinojosa had a motive to falsely implicate the Applicant at his trial. The trial court shall make findings of fact as to whether counsel believes that Hinojosa testified truthfully at Applicant's trial. The trial court shall make findings of fact as to whether counsel believes that the State disclosed all aspects of its plea bargain agreement with Hinojosa to the defense before trial. The trial court shall make findings of fact as to whether counsel disclosed the plea bargain offer of fifteen years' confinement to Applicant before trial. The trial court shall make findings of fact as to whether the State had in its possession any evidence which indicated that Hinojosa had a motive to falsely implicate the Applicant in this case and, if so, shall detail such evidence. The trial court shall make findings of fact as to whether the State believes that Hinojosa testified truthfully at Applicant's trial. The trial court shall make findings of fact as to whether the State plea bargained with Hinojosa to make him testify at Applicant's trial and, if so, shall detail the terms of the agreement. The trial court shall make findings of fact as to whether the State made any plea offers to the Applicant before trial and if so, shall detail such offers. The trial court shall make findings of fact 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 make findings of fact as to whether Hinojosa's recantation affidavit provided on habeas is credible and, if so, whether Applicant is actually innocent of this offense. 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: April 1, 2009 Do not publish