IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 19150-A IN THE 336TH DISTRICT COURT
FROM FANNIN COUNTY
O R D E R
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 aggravated assault and burglary of a habitation. He was sentenced to imprisonment for two terms of fifty years. The Sixth Court of Appeals affirmed his convictions. Barnett v. State, No. 06-00-00107-CR (Tex. App.-Texarkana, delivered August 3, 2001, no pet.).
Applicant contends, among other things, that counsel was ineffective for not calling alibi witnesses to testify at trial. On April 5, 2006, we remanded the application for findings of fact. On remand, counsel stated in a sworn affidavit that alibi witnesses were available to testify, but he decided for "various reasons" not to call the witnesses. The trial court entered findings of fact that counsel's reasons for not calling the witnesses were "soundly based on legal and tactical trial decisions." We believe, however, that the trial court's findings are not sufficient to resolve Applicant's ineffective assistance of counsel claim. Accordingly, the trial court shall provide Applicant's trial counsel with an additional opportunity to respond to Applicant's claim of ineffective assistance of counsel.
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 as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. Specifically, the trial court shall make findings of fact as to counsel's particular reasons for not calling the witnesses, whether such reasons were reasonable trial strategy and, if not, whether Applicant was prejudiced. 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. 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 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: December 6, 2006
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