IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM CAUSE NO. D030039AR IN THE 260TH JUDICIAL DISTRICT COURT OF ORANGE COUNTY
Per curiam.
O R D E R
This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of murder, and punishment was assessed at life confinement. Applicant's conviction was affirmed on appeal. LeBlanc v. State No. 10-03-00120-CR (Tex. App. --El Paso, delivered August 18, 2004, pet. ref'd).
Applicant contends inter alia that he was denied the effective assistance of trial counsel. He alleges that counsel was ineffective for failing to move to suppress or objecting to the introduction of an "enhanced" recording and transcript of a conversation between Applicant and his friend, who Applicant alleges was a co-conspirator. Applicant also alleges that counsel was ineffective for failing to ask that the jury be instructed about the requirement of corroboration for accomplice-witness testimony. Applicant also alleges that defense counsel violated his right not to self-incriminate and destroyed the presumption of innocence during opening statements, by telling the jury that Applicant would testify to his participation in the offense.
The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from trial counsel, or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection.
If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.
Following receipt of additional information, the trial court shall make findings of fact, first as to whether trial counsel filed a motion to suppress evidence prior to trial, or objected to the introduction of the recorded conversation between Applicant and Henry Willis. If counsel did object to the introduction of the evidence, in the form of the original microcassette recording, the "enhanced" compact disc recording, or the transcript of the conversation, the trial court shall make findings as to what the objection was, what the trial court's ruling on any such objection was, and whether counsel pursued any such objection to an adverse ruling. If no motion to suppress was filed, and no objections were made, the trial court shall make findings as to whether these failures were based on reasonable trial strategy, and if so what that strategy was.
Second, the trial court shall make findings as to whether counsel requested that the jury be instructed that a conviction could not be had on the testimony of an accomplice witness absent corroboration. If such an instruction was requested and denied, the trial court shall make findings as to the basis for the refusal. If no such instruction was requested, the court shall make findings as to whether there was evidence indicating that Henry Willis was an accomplice to this offense. If there was such evidence, but trial counsel did not request an accomplice-witness instruction, the trial court shall make findings as to why counsel did not request such an instruction.
Third, the trial court shall make findings as to whether counsel told the jury during opening statements that Applicant would testify that he participated in the charged offense. If counsel did make such statements, the court shall make findings as to whether the defense strategy depended upon Applicant's testimony, and as to whether Applicant had unequivocally decided to testify on his own behalf. The trial court should also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.
Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within ninety days of the date of this order. (1) 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 one hundred and twenty days of the date of this order. (2)
IT IS SO ORDERED THIS THE 13th DAY OF SEPTEMBER, 2006.
EN BANC
DO NOT PUBLISH
1. 2.