## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-87,541-01

EX P ARTE SE RG IO GORDILLO, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 1273425-A IN THE 208TH DIS TRICT COURT

F ROM HARRIS COUNTY

Per curiam . O R D E R Pursuant to the provisi o n s o f Ar t icle 11.07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y oung , 418 S.W .2d 824, 826 (Te x . C ri m . App. 1967). Applicant was convicted of ag g ravated robber y with a deadly wea

pon and sentenc ed to forty -five y ear s’ imprisonment. The First Court of Appea ls aff

irmed his conviction. Gordillo v. State , No. 01-13-00477- CR (Tex. App.—Houston [1st Dist.] Fe b. 19, 2015)(not desig nated f or publication). Applica n t contends that his trial counsel rende red ineffe ctive assistance beca use counsel fail ed to adequa

tely prepa re Applicant for his punishment testimony

. Applicant also alleg es that counsel made an unsound decision to call Applicant’s former g irlfriend, which enable d the State to2

elicit harmful testimony

. The trial court has made finding s that counsel perf ormed defic iently , but Applicant was not prejudice d. Howeve r, Applicant alleg es that counsel’s defic ient perf ormanc e during the punishment phase undermines confide nce in the forty -five year sentenc e whe re the judge initially said that she would sentenc e applica

nt to twenty -five y ear s’ imprisonment. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); Ex parte Patterson , 993 S.W .2d 114, 115 (Tex. Crim. App. 1999). I n these circ umstances, additional fac ts are neede d. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropr iate forum for finding s of fac t. The trial court may use any means set out in T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d)

. I t appea rs that Applicant is repr esente d by counsel. The trial court shall deter mine whether Applicant is repr esente d by counsel, and if not, whether Applicant is indige n t

. I f Ap p licant is indige nt and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to repr esent Applicant. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make finding s of fac t and co n cl u sions of law as to whether counsel’s defic ient perf

ormanc e prejudice d Applicant. Specifica lly , the trial court shall make finding s of fac t and conclusions of law as to whether the judge initially said she would sentenc e Applicant to twenty

five y ear s’ imprisonment. The trial court shall also make finding s of fac t and conclusions of law as to whether the judge ’s decision to sent en ce Ap p l i ca nt to forty -five y ear s was solely based on the testimony elicited by the State from Applicant ’s fo rm er g irlfriend and/or beca use of Applicant’s ref usal to a d mi t to c o mm it

ti n g th e e xtra

neous offe nse or fee ling remorse for committing said offe nse. The trial court shall also make any o t h er fi n dings of fac t and conclusions of law that it deems3

rele vant and a

ppropriate to the dispositi on of Applica nt’s claim for ha

beas c orpus re lief. This application will be held in abeyance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of this order

. A supplem en t al t ra n s cript containing all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hear ing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be for war ded to this Court withi n 120 day s of the date of this order. Any extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: De cembe r 20, 2017 Do not publish