IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. F-0202065-MW IN THE 363RD 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 murder and sentenced to ninety-nine years' imprisonment. The Fifth Court of Appeals affirmed his conviction in an unpublished opinion. Huerta v. State, No. 05-03-00585-CR (Tex. App.-Dallas, delivered March 16, 2004, pet. ref'd).
Applicant contends that his trial counsel rendered ineffective assistance by failing to object or to make proper objections to impermissible hearsay testimony and by failing to properly challenge eye-witness testimony by bringing an expert or aggressively cross-examining the witness on the reliability of his testimony. The trial court has entered findings of fact. However, we do not believe these findings sufficiently address the issue raised.
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 or not the State introduced hearsay testimony and if so, whether trial counsel objected. If objections were made, the trial court shall make findings as to what those objections were. Additionally, the trial court shall make findings of fact as to whether trial counsel was ineffective for failure to employ an eye-witness expert or to effectively cross-examine the eye witness. 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: October 18, 2006
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