IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. F99-71481-HN IN THE 195TH JUDICIAL DISTRICT COURT
FROM DALLAS 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual assault and sentenced to thirty years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Murphy v. State, No. 05-99-02081-CR (Tex. App.-Dallas delivered June 30, 2000).
Applicant contends that his trial counsel rendered ineffective assistance by failing to allow Applicant to testify at the guilt phase of trial and failing to inform Applicant of a twenty-year plea- bargain offer made by the State.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. 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 has entered findings of fact. However, this Court believes that an affidavit is necessary from trial counsel before a decision can be made on the merits of Applicant's application. The trial court shall make supplemental 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. The trial court shall make findings as to whether counsel prevented Applicant from testifying on his own behalf. The trial court will make findings as to whether a twenty-year plea-bargain offer existed and if so, whether counsel informed Applicant of this offer. The trial court shall also make any other supplemental 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: November 22, 2006
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