IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NUMBER 114-1126-02 IN THE 114TH
DISTRICT COURT SMITH COUNTY
Per curiam.
O R D E R
This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault and sentenced to imprisonment for a term of forty years. There was no direct appeal.
In this application for a writ of habeas corpus, Applicant contends that his trial counsel provided ineffective assistance. While the trial court has entered findings of fact and conclusions of law, it is this Court's opinion that additional information is needed before this Court can render a decision on this ground for review, including an affidavit from trial counsel addressing Applicant's ineffective assistance of counsel claims. Further, the trial court has indicated that this Application is a subsequent writ application. It does not specify, though, when Applicant filed a previous writ application or that there has been a final disposition of that writ application, and this Court does not have a record of receiving a previous writ application from Applicant.
Because this Court cannot hear evidence, Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum. The trial court shall resolve these issues as set out in Article 11.07, Section 3(d), of the Texas Code of Criminal Procedure, in that it shall order an affidavit from trial counsel, Mr. Ronnie Van Baugh. The trial court may also order depositions, interrogatories, or hold 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 Article 26.04 of the Texas Code of Criminal Procedure, appoint an attorney to represent him at the hearing.
Following the receipt of additional information, the trial court shall determine whether Applicant was denied effective assistance of counsel, and the trial court shall make any further findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's application for habeas corpus relief. Further, the trial court shall provide documentation to support its finding that this application for a writ of habeas corpus is a subsequent writ application within the meaning of Article 11.07, Section 4, of the Texas Code of Criminal Procedure or make additional findings on this matter.
Further, because this Court does not hear evidence, Ex parte Rodriguez, 334 S.W.2d at 294, 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)
DELIVERED: January 25, 2006
DO NOT PUBLISH
1. 2.