IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. F-2004-1731-DWHC1 IN THE 362ND DISTRICT COURT
FROM DENTON 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 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 life imprisonment. The Second Court of Appeals affirmed his conviction. Ramirez v. State, No. 2-05-104-CR (Tex. App. - Fort Worth, March 31, 2005, pet. ref'd).
Applicant contends that his trial counsel rendered ineffective assistance because counsel argued at the guilt phase that a third person had committed the offense, when Applicant had never claimed, and there was no evidence of, a third person having committed the offense, and this argument undermined the credibility of the sudden passion defense presented at punishment; failed to object to inadmissible inflammatory evidence, specifically, photographs of the crime scene and the complainant; failed to object to the prosecutor's improper closing argument, including statements weighing on Applicant's right to have counsel and present an exculpatory defense and statements misconstruing the law of sudden passion; and failed to request a limiting instruction on evidence of an extraneous offense presented at the punishment phase, specifically, Applicant's assault of his previous wife.
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.
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.
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: March 21, 2007
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