IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 20356 HC-1 IN THE 6TH DISTRICT COURT
FROM LAMAR 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 pleaded guilty to aggravated assault and was placed on deferred adjudication probation for ten years. He was later adjudicated guilty and sentenced to twenty years' imprisonment. He did not appeal his conviction.
Applicant contends that his trial counsel at the adjudication of guilt proceeding was ineffective for not objecting to the introduction of photographs of marihuana plants. In addition, Applicant contends that the evidence was insufficient that he violated the conditions of his probation. Specifically, he alleges that there was insufficient evidence that he intentionally and knowingly possessed marihuana; that he intentionally and knowingly possessed drug paraphernalia; and that he allowed marihuana to be grown on property he possessed, lived at, or owned.
We remanded the application on September 20, 2006, and instructed the trial court to enter findings of fact and conclusions of law. On remand, the trial court held an evidentiary hearing at which Applicant and the State presented arguments. But according to the record, trial counsel neither testified at the hearing nor submitted an affidavit. We believe that trial counsel should respond to Applicant's ineffective assistance of counsel claim. Accordingly, the trial court shall provide trial counsel with the opportunity to respond. 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 habeas counsel. If he is not and if the trial court elects to hold another 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 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 findings of fact as to whether the evidence was sufficient to establish that Applicant violated the conditions of his probation. The trial court shall 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: January 31, 2007
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