IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM CAUSE NO. 2022703-B
IN THE 403RD DISTRICT COURT OF TRAVIS 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 attempt to commit sexual assault, and punishment was assessed at eight years' confinement. Applicant's conviction was affirmed on appeal. Manning v. State, No. 03-03-00128-CR (Tex. App. --Austin, delivered June 24, 2004, no pet.).
Applicant contends, inter alia, that he received ineffective assistance of counsel. Specifically, Applicant contends that trial counsel improperly failed to request a competency hearing, failed to properly investigate the case, failed to interview or call Applicant's family members or his treating physicians from Shoal Creek Hospital in his defense, and failed to present a viable insanity defense.
The trial court has entered findings that trial counsel was effective. However, we do not believe that those factual findings are sufficient to completely resolve the issues presented. 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 does not hear evidence, the trial court is the appropriate forum. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order an affidavit from trial counsel, Malcolm Nettles, or it may order a hearing. In the appropriate case the trial court may also 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 as to whether trial counsel improperly failed to request a competency hearing, failed to properly investigate the case, failed to interview or call Applicant's family members or his treating physicians from Shoal Creek Hospital in his defense, and failed to present a viable insanity defense. The trial court shall 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 90 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 120 days of the date of this order. (2)
IT IS SO ORDERED THIS THE 3RD DAY OF MAY, 2006.
EN BANC
DO NOT PUBLISH
1. 2.