IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 07814 IN THE 90TH JUDICIAL DISTRICT COURT
FROM YOUNG 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 of a child and sentenced to life imprisonment. The Second Court of Appeals affirmed his conviction. Greenway v. State, No. 02-00578-CR (Tex. App.-Dallas, delivered December 9, 1999). Applicant contends, inter alia, that his trial counsel rendered ineffective assistance by failing to request a jury instruction for the lesser included offense of indecency with a child, failing to object to the jury seeing Applicant in jail clothing and handcuffs before and during trial, failing to properly exercise peremptory strikes on the jury panel, failing to properly offer evidence into the trial record, and failing to call a witness that would have been helpful to the defense.
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 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. The trial court shall make findings as to whether counsel requested a lesser included offense instruction and if not, counsel's reasons for failing to do so. The trial court shall make findings as to whether counsel failed to object when the jury viewed Applicant in jail clothing and handcuffs before and during trial. The trial court shall make findings as to whether or not counsel was deficient in his use of peremptory strikes on the jury panel. The trial court shall make findings as to whether counsel failed to enter evidence, specifically photographs of the house on Grove Street, into the trial record and whether that failure prejudiced Applicant. The trial court shall make findings as to whether counsel was ineffective for failing to call a witness, specifically Mr. J.W. Simpson, for the defense and if so, whether that failure prejudiced the defense. 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: November 22, 2006
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