IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM DALLAS COUNTY
O R D E R
This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.071, Tex. Code Crim. Proc.
On July 22, 2002, applicant was convicted of the offense of capital murder. The jury answered the special issues submitted pursuant to Article 37.071, Tex. Code Crim. Proc., and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Hernandez v. State, No. 74,401 (Tex. Crim. App. May 26, 2004).
In his application, applicant presents five allegations in which he challenges the validity of his conviction and resulting sentence. In his first two allegations he claims that he was denied effective assistance of counsel because trial counsel failed to object to the admission of his written statement and failed to present a consistent trial theory with viable alternatives to a capital murder conviction and death sentence. The reasons for counsel's conduct do not appear in the habeas corpus record. Therefore, this cause is remanded to the trial court so that the habeas corpus record can be supplemented with affidavits or testimony from trial counsel responding to applicant's first two allegations. Following receipt of this additional information, the trial court should make findings of fact as to whether counsel performed deficiently and whether applicant was prejudiced by counsel's actions. Strickland v. Washington, 466 U.S. 668 (1984). The trial court should also make any further findings of fact and conclusions of law which it deems relevant and appropriate to the disposition of this application for habeas corpus relief.
This application for habeas corpus relief will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within 90 days of the date of this order. (1) A supplemental transcript containing all affidavits and the trial court's findings of fact and conclusions of law shall be returned to this Court within 120 days of the date of this order. (2)
IT IS SO ORDERED THIS THE 7TH DAY OF DECEMBER, 2005.
Do Not Publish
1. In the event any continuances are granted, copies of the order granting the continuance
should be provided to this Court.
2. Any extensions of this time period should be obtained from this Court.