IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. W99-36979-I(A) IN CRIMINAL DISTRICT COURT NO. 2
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 a 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 twenty years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Rush v. State, No. 05-01-01653-CR (Tex. App.-Dallas, delivered October 30, 2003, pet. ref'd).
Applicant contends, among other things, that trial counsel rendered ineffective assistance because he (1) advised Applicant that he would not have to register as a sex offender after he completed probation; (2) did not investigate facts that would have challenged the complainant's credibility; and (3) advised Applicant that if he pleaded not guilty, he would be sentenced to twenty-five years to life.
The trial court has entered findings of fact, concluding that Applicant's claims are without merit and recommending that relief be denied. We believe, however, that the trial court's findings are not sufficient to resolve Applicant's claims. 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 a second opportunity to respond to Applicant's claims 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 trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. Specifically, the trial court shall make findings of fact as to whether counsel (1) told Applicant that he would not have to register as a sex offender after completing probation; (2) investigated statements from Joshua Rush, the complainant's mother, and the complainant's neighbors challenging the credibility of the complainant; and (3) advised Applicant that if he pleaded not guilty, he would be sentenced to twenty-five years to life. 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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