Opinion
NO. WR-36,732-03
06-19-2019
EX PARTE GEORGE OLIVER MCKNIGHT, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1149919-B IN THE 177TH DISTRICT COURT FROM HARRIS 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 robbery and sentenced to thirty-two years' imprisonment. The Fourteenth Court of Appeals affirmed his conviction. McKnight v. State, No. 14-08-00770-CR (Tex. App. — Houston [14th Dist.] Dec. 17, 2009) (not designated for publication).
Applicant contends, among other things, that his trial counsel rendered ineffective assistance for various reasons. Applicant alleges that trial counsel failed to investigate and obtain discovery from the State. Applicant alleges that trial counsel failed to obtain a copy of the responding officer's offense report, failed to discover that a 911 call was placed by a potential witness or interview that witness, failed to visit the scene to find out if there were surveillance videos, failed to obtain the criminal history of the complainant, and failed to investigate Applicant's mental health history. Applicant alleges that trial counsel failed to request an instruction on the lesser-included offense of theft. Applicant alleges that trial counsel failed to object on the basis of insufficient notice when the trial court indicated that it would submit a special issue to the jury as to the use or exhibition of a deadly weapon that was not alleged in the indictment.
This Court has reviewed Applicant's other claims and finds them to be without merit.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 of ineffective assistance of counsel. Specifically, trial counsel shall state whether he requested and was provided with discovery by the State. Trial counsel shall state whether he obtained a copy of the responding officer's offense report. Trial counsel shall state whether he was aware that an employee at the gas station where the offense occurred had placed a 911 call, and if so whether he sought out that employee as a potential witness. Trial counsel shall state whether he visited the scene of the offense or investigated the existence of surveillance video depicting the offense. Trial counsel shall state whether he requested or was provided the criminal history of the complainant, and if so, whether he believed that any of the information contained therein was admissible to impeach the complainant. Trial counsel shall state whether he was aware that Applicant had received treatment or mediation for psychiatric issues, and if so, whether he considered presenting evidence of such in mitigation. Trial counsel shall state whether he believed that the evidence supported a lesser-included offense instruction, and if so, why he did not request such an instruction. Trial court shall state whether he received notice prior to trial that the State intended to seek an affirmative deadly weapon finding, and if so, in what form an on what date he received such notice. If trial counsel did not receive notice of the possibility of an affirmative deadly weapon allegation prior to trial, counsel shall state whether he considered objecting to the trial court's submission of a special issue as to the use or exhibition of a deadly weapon, and if not, why not. 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 make 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 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 must be requested by the trial court and shall be obtained from this Court. Filed: June 19, 2019
Do not publish