IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM CAUSE NO. 16,494-A IN THE 258TH JUDICIAL DISTRICT COURT OF POLK COUNTY
Per curiam.
O R D E R
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 pleaded guilty to the offense of aggravated robbery, and punishment was assessed by a jury at twenty-five years' confinement. Applicant's conviction was affirmed on appeal. Henderson v. State No. 09-02-504-CR (Tex. App. --Beaumont, delivered January 28, 2004, pet. ref'd).
Applicant contends inter alia that he received ineffective assistance of counsel, that the prosecutor improperly injected new and harmful facts into evidence during closing arguments at punishment, and that the trial court erred in overruling the defense objections to the prosecutor's argument. 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 counsel, 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 counsel advised and/or compelled Applicant to take the stand during the punishment phase, and if so, why. The court shall also make findings as to whether counsel told Applicant that the only way he could receive probation was to plead guilty before the jury, and that he would indeed get probation if he did so. The trial court shall also make findings as to whether there was evidence presented during punishment that Applicant held the complainant down and/or tried to pull her pants down or attempted to sexually assault her. Furthermore, the court shall make findings as to whether the prosecutor stated during closing arguments that Applicant had done any of these things, and whether defense counsel objected. If the prosecutor did make such a statement, and if defense counsel timely objected, the court shall make findings as to whether the objection was sustained or overruled, and why. 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. (1) 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. (2)
IT IS SO ORDERED THIS THE 14th DAY OF DECEMBER, 2005.
EN BANC
DO NOT PUBLISH
1. 2.