IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 6060-B IN THE 39TH JUDICIAL DISTRICT COURT
FROM HASKELL 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 with intent to deliver a controlled substance and sentenced to seventy-five years' imprisonment. The Eleventh Court of Appeals affirmed his conviction. Glenn v. State, No. 11-05-00330-CR (Tex. App. - Eastland, May 24, 2007, pet. ref'd).
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to adequately investigate or consult with Applicant prior to trial, failed to interview or call witnesses for the defense, specifically Applicant's co-defendant, Cynthia Jeffery, and failed to investigate and challenge the validity of the enhancement allegations.
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. 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 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 first supplement the habeas record with a copy of the indictment and judgment in this case, and with copies of any evidence introduced at the punishment stage to prove up the enhancement allegation(s). The trial court shall make findings of fact as to whether counsel consulted with Applicant prior to trial, and as to whether counsel performed an independent investigation of the facts and law of the case. The trial court shall make findings as to whether counsel interviewed Cynthia Jeffery prior to Applicant's trial, and if so, whether she provided any evidence that would have been helpful to the defense, and why counsel did not call her to testify. The trial court shall make findings as to whether the evidence introduced to support the enhancement allegation(s) was consistent with the allegations in the indictment, and if not, why counsel failed to object. The trial court shall make findings 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: November 5, 2008
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