IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. F-2004-317-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 aggravated sexual assault and sentenced to forty years' imprisonment. The Second Court of Appeals affirmed his conviction. Crump v. State, No. 02-04-277-CR (Tex.App. - Fort Worth, delivered April 28, 2005, pet.ref'd).
Applicant contends that his trial counsel rendered ineffective assistance because he advised Applicant to have the trial court assess punishment when Applicant was seeking community supervision and the trial court could not grant community supervision. He also complains that the State improperly argued that the complainant would not have been able to testify as to details of sexual misconduct unless Applicant had sexually assaulted her, after successfully arguing against admission of evidence showing that the complainant had engaged in sex acts with several other people. Applicant contends that counsel was ineffective in failing to object to this improper argument. No findings of fact have been entered by the trial 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 making findings of fact. If no live hearing is conducted, the trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel, and then provide the parties an opportunity to respond to counsel's response. 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.
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. Specifically, the court shall determine whether Applicant's trial counsel advised him that the trial court could not grant community supervision; whether Applicant wanted to seek community supervision; whether the State successfully sought to exclude evidence that the complainant had engaged sex acts with persons other than Applicant prior to the trial in this cause; whether the State argued that the complainant could not have testified in such detail unless she had been sexually assaulted by Applicant; and whether counsel objected to any such argument. 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. The trial court is not limited to the above issues if the court believes any other issues are relevant to the application herein.
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.
Delivered: February 28, 2007.
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