IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
IN CAUSE NO. F-2000-605-D IN THE 362ND DISTRICT
COURT OF DENTON 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 aggravated sexual assault and punishment was assessed at confinement for ninety-nine years. Applicant's conviction was affirmed on appeal. Heinze v. State No. 02-01-00406-CR (Tex. App. --Fort Worth, delivered February 20, 2002, pet ref'd.).
Applicant contends that counsel was ineffective for failing to object to testimony at trial that contained hearsay. 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 defense 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 should 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 should make findings of fact as to whether counsel was ineffective for failing to object to the out of court videotaped statement of the complainant and hearsay testimony from Ken Keeney regarding an allegation of a prior sexual offense by the defendant. 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 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 22nd DAY OF MARCH, 2006.
DO NOT PUBLISH
1. 2.