IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-67,880-03 & WR-67,880-04

EX PARTE LUCKY JOHN LUNA, Applicant

ON STATE’S MOTION FOR REHEARING ON

APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. W02-3177-Q(B) & W05-00345-Q(B)

IN THE 204TH DISTRICT COURT FROM DALLAS COUNTY

            Per curiam.

O R D E R

            On January 15, 2014, we granted Applicant’s request for relief pursuant to his application for writ of habeas corpus alleging that he received ineffective assistance of counsel during his sentencing hearing on the offenses of aggravated sexual assault and sexual assault. Ex parte Luna, Nos. WR-67,880-03 & WR-67,880-04, slip op. at 1-2 (Tex. Crim. App. Jan 15, 2014) (not designated for publication). We set aside Applicant’s previous sentences of fifteen and ten years’ imprisonment imposed for the respective offenses and granted new sentencing proceedings. Id.

            On January 23, 2014, the State filed a motion for rehearing alleging, among other things, that due to the Dallas County District Clerk’s error, this Court did not have the State’s objections to the trial court’s findings of facts and conclusions of law and could not have considered them in evaluating Applicant’s request for relief. The State’s motion is well taken. We therefore grant the State’s motion for rehearing, withdraw our opinion granting relief, and remand this application to the trial court to obtain a response from the sentencing judge, the Honorable Gary Stephens, and for further findings and conclusions.

            The trial court shall direct the Honorable Gary Stephens to respond to the findings of fact and conclusions of law entered by the Honorable Lena Levario on September 25, 2013. The response shall include, but is not limited to, whether the entered findings of fact and conclusions of law are supported by the Honorable Gary Stephens’s personal recollection and whether they are consistent with the Honorable Gary Stephens’s sentencing practices.

             The trial court may use any means set out in Texas Code of Criminal Procedure Article 11.07, § 3(d). Applicant appears to be represented by counsel. If he is not and 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.

            After reviewing the Honorable Gary Stephens’s response, the trial court shall make further findings of fact and conclusions of law as to whether the performance of Applicant’s trial counsel 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 claim 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 60 days of this order. 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 forwarded to this Court within 90 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: April 30, 2014

Do not publish