Opinion
WR-80,042-02
12-07-2022
EX PARTE BRIAN RANARD DAVIS, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1223497-A IN THE 248TH DISTRICT COURT FROM HARRIS COUNTY
Newell, J., concurred.
ORDER
Per curiam.
Applicant was convicted of capital murder and sentenced to life imprisonment without the possibility of parole. The Fourteenth Court of Appeals affirmed his conviction. Davis v. State, No. 14-10-00170-CR (Tex. App.-Houston [14th Dist.] Jul 7, 2011) (not designated for publication). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
This application was file-stamped in Harris County on December 28, 2012. An order designating issues was signed by the trial judge on February 21, 2013. This application was not received by this Court until August 24, 2022. There is no indication in the record of any action by the trial court after the order designating issues was signed. Nor is there any indication as to why this application was pending in Harris County for so long without any action by the clerk or the trial court.
Applicant contends, among other things, that trial counsel was ineffective because he failed to interview and call certain witnesses; hire experts to assist the defense and to contest the State's theories; adequately investigate the case; present testimony from the independent DNA expert; and adequately cross-examine the medical examiner. Applicant also contends that appellate counsel was ineffective because he failed to raise a number of issues on appeal, including that the trial court violated his right to effective assistance of trial counsel and that the prosecutor made improper closing arguments and relied on false and coerced testimony to obtain Applicant's conviction. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d).
As a preliminary matter, the trial court shall make findings of fact as to why no action was taken by the trial court or the clerk between the entry of the order designating issues and the forwarding of the application to this Court. Applicant has recently filed a number of documents, including a motion asking this Court to order the trial court to resolve the issues in his application and a supplemental application adding another ground. Because these filings indicate that Applicant still wishes to pursue his application, the trial court shall order trial counsel and appellate counsel to respond to Applicant's claims. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant was prejudiced. The trial court shall make findings of fact and conclusions of law as to whether appellate counsel's performance was deficient and Applicant was prejudiced. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.