IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 2001CR6471B IN THE 186TH DISTRICT COURT
FROM BEXAR 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 robbery and sentenced to sixty years' imprisonment. The Fourth Court of Appeals affirmed his conviction. Smith v. State, No. 04-03-00416-CR (Tex. App.-San Antonio 2004, pet. ref'd).
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance by failing to move to suppress a prejudicial identification procedure, failing to move to suppress the fruits of an allegedly illegal arrest, and failing to object to allegedly inadmissible victim impact evidence.
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. This Court recognizes that the trial court made findings of fact in this case. However, this Court feels that an affidavit from trial counsel is necessary to address Applicant's claims. 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 the pre-trial identification procedure was prejudicial and if trial counsel was ineffective for failing to file a motion to suppress, whether Applicant's arrest was illegal and if trial counsel was ineffective for failing to file a motion to suppress the evidence obtained by that arrest, and finally whether the victim impact evidence to which Applicant refers was inadmissible, and if trial counsel was ineffective for failing to object. 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 15, 2006
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