IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 02-72607-Q IN THE 204TH DISTRICT COURT
FROM DALLAS 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 assault with a deadly weapon and sentenced to twenty-five years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Harris v. State, No. 05-03-00261-CR, (Tex. App.-Dallas, delivered October 18, 2004).
Applicant contends that his trial counsel rendered ineffective assistance by failing to obtain a second opinion as to Applicant's competence, failing to object as to extraneous offense testimony, failing to investigate and object to the enhancements, denying him his right to testify, and failing to enforce a sentencing agreement. The trial court sent to this Court findings of fact and conclusions of law, then recommended denying relief to Applicant. The trial court, in its findings, references an affidavit filed by trial counsel in response to Applicant's claims. The trial attorney's affidavit was the basis of some of the findings made by the trial court. This Court does not have a copy of such affidavit in the record forwarded to this 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. 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 forward any affidavit filed by trial counsel in response to Applicant's claims. The trial court shall also make any supplemental 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: February 27, 2008
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