Opinion
No. WR-63,884-02
May 3, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Trial Court Cause Number 25822-B, in the 3rd Judicial District Court, From Anderson 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 manufacture of a controlled substance, and punishment was assessed at forty-five (45) years' confinement. Applicant's conviction was affirmed on appeal. Revill v. State, No. 12-02-00197-CR (Tex.App.-Tyler, delivered June 23, 2004, pet. ref'd). Applicant contends that he received ineffective assistance of counsel at the guilt-innocence and punishment phases of trial. Specifically, he contends that at the guilt-innocence phase, counsel: failed to make an opening statement; failed to object to the introduction of evidence that Applicant owned guns and bomb-related materials; failed to challenge the credibility of an informant, Robert Frazier, who testified to Applicant's prior drug dealings; failed to impeach the testimony of Robert Thompson concerning Applicant's involvement in a plot to kill the police chief; opened the door to otherwise inadmissible evidence of extraneous offenses, including a plot to kill the police chief; and failed to request an instruction on the standard of proof required for admitting extraneous offenses. Additionally, he contends that at the punishment phase, counsel opened the door to evidence of: Applicant's invocation of his right to remain silent, the existence of a federal search warrant, a hoax bomb call to the courthouse, Applicant's involvement in a plot to kill the police chief, and Applicant's possession of a machine gun; and failed to cross-examine Robert Thompson about allegations that Applicant had conspired to commit capital murder. The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts which, 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 does not hear evidence, the trial court is the appropriate forum. The trial court shall 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, or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection and court records. 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, at the guilt-innocence phase, counsel: failed to make an opening statement, and if so, why; failed to object to the introduction of evidence that Applicant owned guns and bomb-related materials, and if so, why; failed to challenge the credibility of Robert Frazier, and if so, why; failed to impeach the testimony of Robert Thompson, and if so, why; opened the door to otherwise inadmissible evidence of extraneous offenses, and if so, why; and failed to request an instruction on the standard of proof required for admitting extraneous offenses, and if so, why. If the court finds that counsel's performance was deficient, the court shall make findings as to whether counsel's performance prejudiced Applicant. Additionally, the trial court shall make findings of fact as to whether, at the punishment phase, counsel opened the door to evidence of: Applicant's invocation of his right to remain silent, the existence of a federal search warrant, a hoax bomb call to the courthouse, Applicant's involvement in a plot to kill the police chief, and Applicant's possession of a machine gun; and failed to cross-examine Robert Thompson about allegations that Applicant had conspired to commit capital murder. If the trial court finds that counsel did act as alleged, the court shall make findings as to why counsel so acted. If the court finds that counsel's performance was deficient, the court shall make findings as to whether counsel's performance prejudiced Applicant. 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. The trial court shall supplement the habeas record with copies of all documents upon which its findings are based, including excerpts of the trial transcript, affidavits from counsel, and any other relevant documents. Because this Court does not hear evidence, Ex Parte Rodriguez, 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 (90) 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 twenty (120) 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 shall be provided to this Court.
Any extensions of this time period shall be obtained from this Court.