## 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-82,509-03

EX P ARTE JAIME COVARRU BIAS, App licant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. W99-32080-V( C) IN THE 292ND DISTRICT COURT

F ROM DALLAS COUNTY

Per curiam . O R D E R Applicant was convicted of capital murder and sentenc ed to life i mprisonment. T h e Fi fth Court of Appea ls a ffirme d his c onviction. Covarrubias v. State , No. 05-00-01387- CR (Te x . App.

— Dallas April 2, 2002) (not desig nated for publication). Applicant filed an application for a writ of habea s corpus and an amende d application for a writ of habea s corpus in the county of conviction, and the district cle rk for

war ded them to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. The trial court appointed a habea s attorney to repr esent Applicant, and that attorney moved to dismiss Applicant’s pro se applications so that further investiga tions could be pe r f o r me d

. B e c ause there was some indication that Applicant did not ag ree with appointed counsel’s motion to dismiss

or withdraw the application, this Court rema nded this matter to the trial court on October 23, 2019,2

to deter mine whether Applicant ag ree d with appointed habea s counsel’s mot i o n t o d i smiss or withdraw Applicant’s p ro se application, and whether Applicant st ill wanted to be represe nted by habea s counsel. On J anuar y 6, 2020, this Court rec eived the supplemental re cord afte r rema nd. The trial court appar ently held a live hear ing on November 21, 2019, at which Applicant informed the trial court 1 that he wants to proce ed pro se and does not want to withdraw his pro se application. Acc ording to the trial court’s finding s, Applicant “ac knowledg ed that this curr ent application was not compliant but asked for sufficie nt time to amend the application.” I n fac t, the amende d application filed by Applicant on April 23, 2019, and included in the habea s rec ord befor e re m and appea rs to be compliant. Applicant contends, among other things, that t ri al counsel was ineffe ctive beca use trial 2 counsel failed t o object when the t rial cour t ga ve the jury

a supplementa l instruction requiring the jury to be unanimous in finding Applicant not g uilty of capital murder befor e proce eding to consider a lesser -included of

fense , allowed biase d jurors to se rve on the jury , did not allow Applicant to be p re s ent when response s to jury notes wer e prepa red, failed to impeach a witness using p ri o r inconsistent statements, failed to object to testimony about extraneous offe nses and/or bad acts, and failed to objec t to error s in the jury char g e. Applicant also alleg es that appellate counsel was ineffe ctive for failing to arg ue that the trial court had err ed in not allowing the def en se to introduce letters written by one of the victims to

The supplementa l rec ord did not include a tra nscript of the he aring , as re quired by this 1 Court’s rema

nd order

. This Court has review ed Applica nt’s other c laims and finds them to be without merit. 23

Applicant in t i m e t o all ow the defe nse to proper ly use the evidenc e, failing to arg ue that the trial court had err ed in deny ing defe nse reque s t s for instructions on involuntary conduct at the g uilt/i nnocenc e phase and sudden passion at the punishment phase, and failing to arg ue that biased jurors had be en empa

neled. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984). Acc ording ly , the rec ord should be develope d. The trial court is the appropr iate forum for finding s of fac t. T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). The trial court shall order trial counsel and appellate counsel to respond to A pplicant’s claims. I n developing the rec ord, the trial court may use any means set out in Article 11.07, § 3(d). I f the trial c ourt elec ts to hold a hear ing, it shall deter

mine whether Applicant is indige nt. I f Applicant is indige nt and wants to be repr esente d by counsel, t h e t ri al court shall appoint counsel to repr esent him at the hear ing. See T E X . C O D E C R I M . P R O C . art. 26.04. I f counsel is appointed or reta ined, the trial court shall immediately notify this Court of counsel’s name

. The trial court shall first supplement the habea s rec ord with a transcr ipt of the hear ing conducte d on November 21, 2019. The trial court shall make finding s of fac t and conclusions of law

as to whether trial counsel’s perf ormanc e was defic ient and Ap p l i ca n t wa s prejudice d. The trial court shall also make finding s of fac t and conclusions of law as t o wh et h er appellate counsel’s perf ormanc e was defic ient and Applicant was prejudice d. The trial co u rt m ay make any other finding s and conc lusions that it deems a ppropriate in response to Applica nt’s claims. The trial court shall make findings of fac t and conclusio n s o f l aw within ninety day s from the date of this order

. The district cler k shall then immediately forwa rd to this Court the trial court’s finding s and conclusions and the rec ord develope d on rema nd, including, among other things,4

aff idavits, motions, objections, proposed finding s and conclusions, orders , and transcr ipts from hear ings and depositions. See T E X . R. A P P . P. 73.4(b)( 4). Any extensions of time must be reque sted by the trial cour

t and obtained f

rom this Court.

Filed: January

29, 2020 Do not publish