IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 21378-A IN THE 336TH DISTRICT COURT
FROM FANNIN 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 of a child and sentenced to fifty-five years' imprisonment. The Sixth Court of Appeals affirmed his conviction. Hankey v. State, No. 06-06-00172-CR (Tex. App. - Texarkana, May 24, 2007, no pet.).
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to object to the admission of a videotaped interview of complainant.
Applicant raised this claim on direct appeal. The court of appeals found that the videotape was inadmissible hearsay that properly would have been excluded, had counsel objected. However, the court of appeals declined to find counsel ineffective because it was possible that counsel's failure to object was part of a reasonable trial strategy. Therefore this claim is appropriately raised in the current application for habeas corpus. See Ex parte Varelas, 45 S.W.3d 627, 630, 632 (Tex. Crim. App. 2001).
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).
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. 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: August 20, 2008
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