IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NOS. W98-43771-L(C) & W00-29731-L(B)
IN CRIMINAL DISTRICT COURT NO. 5 FROM DALLAS 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two charges of aggravated assault and sentenced to concurrent three year terms of imprisonment. He did not appeal his convictions.
Applicant has discharged his sentence in each of these convictions, but alleges collateral consequences in that these "unconstitutionally obtained" convictions are being used to enhance his sentence in a different conviction. Applicant contends that his trial counsel rendered ineffective assistance for: (1) failing to file motions; (2) failing to investigate the complainant's criminal history; (3) failing to raise a self-defense theory; and (4) coercing Applicant into entering a guilty plea.
Applicant has filed applications regarding these convictions in the past, and this Court has reviewed those prior applications. Because the prior applications did not challenge the merits of Applicant's convictions, the instant applications are not barred by Section 4.
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 claims of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).
If 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 Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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 claim for habeas corpus relief. Additionally, the trial court shall forward any records regarding Applicant's guilty plea and the admonishments given prior to the acceptance of the plea.
These applications 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 12, 2007
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