Opinion
No. WR-29,735-04
Filed: February 16, 2011. DO NOT PUBLISH.
On Application for A Writ of Habeas Corpus Cause No. A-31,689-B in the 70th Judicial District Court from Ector County.
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual assault of a child and sentenced to ninety-nine years' imprisonment. The Eleventh Court of Appeals affirmed his conviction. Jones v. State, No. 11-05-00235-CR (Tex. App.-Eastland, August 9, 2007, pet. ref'd)). Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel allowed a hearing to be conducted pursuant to Rule 412 of the Texas Rules of Evidence without Applicant's presence, failed to conduct adequate voir dire or exercise strikes to eliminate biased jurors, and failed to retain a defense expert on false allegations of sexual abuse. Applicant also alleges that appellate counsel was denied a complete record on appeal, and had inadequate time to prepare the appeal. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 provide Applicant's trial and appellate counsel with the opportunity to respond to Applicant's claims of ineffective assistance of counsel. 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 Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04. The trial court shall first supplement the habeas record with a copy of the trial transcript, including pre-trial motions and hearings, and voir dire. The trial court shall make findings of fact as to whether a hearing was conducted prior to trial pursuant to Rule 412, and if so, whether Applicant and/ or his trial attorney were present during the hearing. The trial court shall make findings as to whether the record of any such hearing was sealed. The trial court shall make findings as to whether appellate counsel's motion to unseal the record of such hearing was ruled upon, and if so, whether the motion was denied and on what basis. The trial court shall make findings as to whether trial counsel allowed jurors to be empaneled who were employees of Harmony House, or were members of a drug task force involved in the arrest of applicant's wife on unrelated charges. The trial court shall make findings as to whether counsel requested appointment of defense expert, and if so, whether such request was granted or denied. The trial court shall make findings as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make findings as to whether appellate counsel had adequate time to prepare Applicant's appeal, and whether appellate counsel had access to a complete record upon which to prepare the appeal. The trial court shall make findings as to whether the performance of Applicant's appellate attorney was deficient, and, if so, whether appellate 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 ninety (90) days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 (120) days of the date of this order. Any extensions of time shall be obtained from this Court.