IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 2001-CR-246-C IN THE 197TH DISTRICT COURT
FROM CAMERON 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 a 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 forty years' imprisonment. He did not appeal his conviction.
Applicant contends that his trial counsel rendered ineffective assistance because he (1) failed to investigate Applicant's competency and request a competency hearing; (2) advised Applicant that he could not testify and that his only choice was to plead guilty and accept the State's offer of forty years; (3) failed to object when Applicant testified that he had not been treated for mental illness; (4) represented to the trial court that Applicant had not been treated for mental illness; and (5) failed to interview "Jeremy," a defense witness, and other witnesses who knew that Applicant was not mentally competent. Applicant also contends that his mental illness rendered his guilty plea involuntary.
On November 20, 2007, the trial court signed an order instructing counsel to submit an affidavit. This application was then forwarded to this Court, but without findings of fact and conclusions of law. We believe that this application was prematurely forwarded to this Court.
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.
Applicant appears to be represented by counsel. If he is not and 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact as to whether the performance of trial counsel was deficient and, if so, whether Applicant was prejudiced. The trial court shall also make findings of fact as to whether Applicant's plea was involuntary. 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 claims 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: December 19, 2007
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