Opinion
NO. WR-85,102-01
06-15-2016
EX PARTE FALLON WAYNE HART, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W12428-1 IN THE 355TH DISTRICT COURT FROM HOOD COUNTY
Per curiam. ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of three counts of aggravated assault on a public servant and sentenced to ninety-nine years' imprisonment on each count. The Seventh Court of Appeals affirmed his convictions. Hart v. State, No. 07-14-00075-CR (Tex. App.—Amarillo Sept. 2, 2014) (not designated for publication).
Applicant contends that trial counsel's representation was undermined by a conflict of interest and that he failed to object when Applicant's supporters were not allowed to sit in the gallery behind him.
Applicant has alleged facts that, if true, might entitle him to relief. Cuyler v. Sullivan, 446 U.S. 335 (1980); Strickland v. Washington, 466 U.S. 668 (1984). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order trial counsel to respond to Applicant's claims. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
If 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 him at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
After reviewing counsel's response, the trial court shall make findings of fact and conclusions of law as to whether counsel actively represented conflicting interests and his conduct at trial was adversely affected by a conflict of interest. The trial court shall also make findings and conclusions as to whether counsel was deficient for not objecting and his alleged deficient conduct 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 claims 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 90 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 120 days of the date of this order. Any extensions of time shall be obtained from this Court. Filed: June 15, 2016
Do not publish