Per curiam.
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 aggravated sexual assault and sentenced to thirty years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Pittman v. State, No. 05-04-00582-CR (Tex. App.-Dallas, delivered May 12, 2005, pet. ref'd).
Applicant contends that his trial counsel rendered ineffective assistance because she opened the door to the admission of Applicant's prior misconduct. On October 4, 2006, we remanded the application and instructed the trial court to enter findings as to whether counsel's performance was deficient and whether, as a result, Applicant was prejudiced. On remand, the trial court found that counsel's performance was not deficient and that Applicant was not prejudiced. The trial court concluded that counsel was not ineffective.
We believe, however, that the trial court's findings are not adequate to resolve Applicant's claim. Specifically, the trial court failed to enter findings of fact on whether counsel opened the door to the admission of Applicant's prior misconduct. We believe that the trial court should enter further findings of fact. The trial court shall provide Applicant's trial counsel with a second 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 then make further findings of fact as to whether counsel opened the door to the admission of Applicant's prior misconduct. If so, the trial court shall make findings as to whether counsel's performance was deficient and whether her 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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