## 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-82,663-01

EX P ARTE BERNADETT E PERSUSQUIA, AK A BERNADETTE PERUSQUIA, Appli cant
ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 2009CRN000882-D 1 IN THE 49T H DISTRICT COURT

F ROM WEBB COUNTY
Per curiam . O R D E R Pursuant to the provisions of Article 11.07 of the Tex as C o d e o f 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 o u n g , 4 1 8 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenc ed to life imprisonment. The Four th Court of Appea ls a ffirme d her conviction. Perusquia

v. State , No. 04-12-00126- CR (Tex. App. — San Antonio, J une 12, 2013) (not desi gn at ed fo r publication). Applicant conte n d s , a

mo n g o th e r th in g s , th a

t h er trial counsel rende red ineffe ctive assistance 1
This Court has review ed Applica nt’s other c laims, and finds them to be without merit. 12

for several re as o n s . On Marc h 4, this Court rema nded this matter to the trial court to obtain additional aff

idavits and finding s addre ssing Applicant’s alleg ati o n s . The trial court conducte d a habea s hear ing on J uly 15, 2015, at which extensi v e testimony and arguments wer e hear d. Following the habea s hear ing, the trial court enter ed an order adopting some of Applicant’s proposed finding s of fac t and conclusions of law, but reje cting ot h er s . The trial court made no specific
rec ommendation as to whether Applicant should be g rante d a new trial or a new punishment hear ing. Some of t he findings of fac t and conc lusions of law adopted a nd reje cted by

the trial cour

t appea r to be inconsistent. Specifica lly , with reg ard to Appl i cant’s claim that trial counsel was ineffe ctive at the g uilt/i nnocenc e stag e for failing to e stablish that Applicant was awa re of specific acts of violence by the vict i m aga i n s t h is former wife, Anna Perusquia, and that this awa rene ss materia lly aff

ecte d Applicant’s appre hension of dang er when she shot the victim, the trial court finds that Anna Per

usquia’s testimony

would have be en admissible had Applica nt testified that she wa s
awa re of these acts at the time she shot the victim. The trial court finds that the exclusion of this testimony substantially contribut ed the jury ’s reje ction of Applicant’ self-de fense claim. Neve rtheless, the trial court finds that trial counsel’s failure to provide an available , leg ally sufficie nt basis for the admissibili ty of the testimony did not fall below the a pplicable objective standard for
rea sonable perf

ormanc e, and that there is not a rea sonable probability that Applicant would not have been convicted of murder but for trial counsel’s failure
. The trial court conclude s that the evidenc e
wo u l d h ave been admissible to establish that Applicant was rea sonably in fea r of the victim, and conclude s that Applicant was denied rea sonably eff ective assistance of trial counsel in this reg ard. These f indings a nd conclusions appe ar to be contra dictory
. The trial court shall make additional finding s of fac t and conclusions of law or enter an order3

clar ifying its previous finding s of fac t and conclusions o f l aw , and making specific finding s and conclusions as to whether trial counsel was ineffe ctive at the g uilt/i nnocenc e stag e of trial, and at the punishment stag e of trial. The trial court shall make a rec ommendation as to whether Applicant is entitled to a new trial, a new punishment hear ing, or both. The trial court shall also make any other finding s of fa ct and c onclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s c laims for habe as cor pus relief
. This application will be held in abeyance until the trial court has resolved the fac t issues. The i s s u es s h all be resolved within 90 day s of this order
. A supplemental transcr ipt containing al l aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hearing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be forwar ded to this Court within 120 day s of the date of this order. Any extensions of t ime shall be obtained f

rom this Court.

Filed: F ebrua

ry 24, 2016 Do not publish