IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 13,613-A IN THE 115TH DISTRICT COURT
FROM UPSHUR 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 possession of methamphetamine with intent to deliver and sentenced to 78 years' imprisonment. The Sixth Court of Appeals affirmed his conviction. See Russell v. State, No. 06-05-00219-CR, (Tex. App.- Texarkana, 2006, pet. ref'd.) (not designated for publication).
Applicant contends inter alia that his trial counsel rendered ineffective assistance because counsel failed to request an accomplice witness instruction be given with regards to the jury's consideration of Crystal Keller's testimony. He also alleges that counsel was ineffective for failing to raise a hearsay objection when Stephanie Smith's affidavit was admitted into evidence and for failing to make sure that Smith testified at trial so that he could have impeached her testimony on cross-examination. He also alleges that counsel was ineffective for failing to call Lisa Green, Martha Russell, Summer Green, Henry Houston, and Intha Vaughan to testify in the guilt phase of trial. Further, Applicant alleges that counsel was ineffective for failing to investigate whether there was any mitigating evidence available to present at punishment. Finally, Applicant alleges that counsel was ineffective for failing to file a motion for continuance so that he would have had more time to prepare for trial.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), 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 in that it shall order counsel to file and affidavit addressing: (1) whether counsel requested that the trial judge give an accomplice witness instruction with regards to the jury's considerations of Keller's testimony and, if not, why counsel did not believe that such an instruction was necessary; (2) whether counsel objected to the admission of Smith's affidavit and, if not, why counsel did not believe that it was necessary to object; (3) whether counsel believed that the impeachment of Smith's testimony on cross-examination would have benefitted the defense; (4) whether counsel was aware that Lisa Green, Martha Russell, Summer Green, Henry Houston, and Intha Vaughan were available to testify in the guilt phase of trial and, if so, why counsel failed to call these witnesses to testify; (5) whether counsel investigated the availability of mitigating evidence and, if so, what mitigating evidence was available to present at punishment; and, (6) whether counsel believed that he needed more time to prepare for trial and, if so, why counsel failed to file a motion for continuance. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) to resolve the fact issues. 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. Specifically, the trial court shall make findings of fact as to whether counsel requested that an accomplice witness instruction be given with regards to the jury's consideration of Keller's testimony and, if not, why counsel did not believe that such an instruction was necessary. The trial court shall make findings of fact as to whether counsel objected when Smith's affidavit was admitted and if not, why counsel did not believe that it was necessary to object. The trial court shall make findings of fact as to whether counsel believed that the impeachment of Smith's testimony on cross-examination would have benefitted the defense. The trial court shall make findings of fact as to whether counsel was aware that Lisa Green, Martha Russell, Summer Green, Henry Houston, and Intha Vaughan were available to testify in the guilt phase of trial and, if so, why counsel failed to call these witnesses to testify. The trial court shall make findings of fact whether counsel investigated the availability of mitigating evidence and, if so, what evidence was available to present at punishment. The trial court shall make findings of fact as to whether counsel believed that he needed more time to prepare for trial and, if so, why counsel did not file a motion for continuance. 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: December 17, 2008
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