Opinion
No. WR-63,078-01
February 8, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus from Cause No. 0629965D in the 371st District Court of Tarrant County.
ORDER
This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of possession of a firearm by a felon, and punishment was assessed at twenty years' confinement, to run consecutively with a life sentence for murder. Applicant's conviction was originally reversed on direct appeal on the grounds that the trial court erred in denying Applicant's motion to dismiss the indictment for want of a speedy trial. Dragoo v. State, No. 2-00-032-CR (Tex.App.-Fort Worth, Aug. 2, 2001). The State filed a petition for discretionary review and this Court reversed, after weighing the four factors described in Barker v. Wingo, 407 U.S. 514, 530 (1972), and concluding that Applicant had failed to assert his right to a speedy trial or show that he had been prejudiced by the delay. Dragoo v. State, 96 S.W. 3d 308 (Tex.Crim.App. 2003). On remand, the court of appeals addressed Applicant's remaining points of error and affirmed the judgment of the trial court. Dragoo v. State No. 2-00-032-CR (Tex.App.-Fort Worth, delivered December 11, 2003, pet. ref'd.). Applicant now contends that his trial counsel was ineffective for failing to file a motion for a speedy trial and for failing to present evidence and raise arguments at the hearing on the motion to dismiss the indictment on the basis of denial of speedy trial, which was filed on the day before Applicant's trial. The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from defense counsel and the trial prosecutor, or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection. If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing. Following receipt of additional information, the trial court shall make findings of fact as to whether the prosecutor assured defense counsel that the possession of a firearm by a felon charge would be dismissed if Applicant's murder conviction was affirmed on direct appeal, and if so, why the charge was not dismissed. The court shall also make findings as to why defense counsel failed to move for a speedy trial or to ask the prosecutor to file a motion to dismiss the case when it became apparent that the State was going forward with the case. The trial court shall make further findings as to whether the woman who was with Applicant at the time of the offense was available to testify at the time of trial. If not, the court shall make findings as to whether she was available prior to the trial date, and if so why counsel failed to obtain a written statement from her or keep apprised of her whereabouts until the time of trial. If the witness was not available at the time of trial, the court shall make findings as to why defense counsel failed to make a showing under Harris v. State, 489 S.W.2d 303, 308 (Tex.Crim.App. 1973) at the hearing on the motion to dismiss the indictment. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus. Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.Crim.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within ninety days of the date 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 returned to this Court within one hundred and twenty days of the date of this order. IT IS SO ORDERED.
In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.
Any extensions of this time period should be obtained from this Court.