IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 78743-A IN THE CRIMINAL DISTRICT COURT
FROM JEFFERSON 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 and sentenced to thirty (30) years' imprisonment. The Ninth Court of Appeals affirmed his conviction. Flowers v. State, No. 09-02-348-CR, (Tex. App. - Beaumont, 2004, no pet. ) (not designated for publication).
Applicant alleges that counsel was ineffective because he failed to object when the State introduced evidence of an unadjudicated aggravated sexual assault of a child offense in the guilt phase. Also, Applicant alleges that counsel was ineffective for eliciting testimony from Applicant and the complainant concerning various unadjudicated offenses in the guilt phase. Also, Applicant alleges that counsel was ineffective for failing to request a limiting instruction with regards to the jury's use of the extraneous offense evidence at the time the extraneous offense evidence was admitted into evidence. Finally, Applicant alleges that counsel rendered ineffective assistance because counsel advised him to plead true to enhancement paragraphs at punishment. Applicant contends that one of the offenses used to enhance had a probated sentence and thus could not be validity be used to enhance punishment.
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 may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) to resolve the fact issues. The trial court shall order the Assistant District Attorney who prosecuted this case to file an affidavit addressing the following: (1) whether Applicant has any other prior felony convictions from Texas or any other jurisdiction which could be substituted for the probated sentence to properly enhance punishment to the second degree felony punishment range; and, (2) whether the alleged enhancement error in this case could be cured by entering a judgment nunc pro tunc. Further, the trial court shall supplement the record with copies of the indictments and judgments in the causes which were used to enhance punishment in this cause. The trial judge shall also supplement the record with copies of the indictments and judgments in the causes from Texas or any other jurisdiction which the State could have used to properly enhance punishment to the second degree felony punishment range in this cause. The trial judge shall also supplement the record with copies of the court reporter's notes from the guilt phase and the punishment phase of trial. Finally, the trial judge shall supplement the record with a copy of the jury instructions given in this cause concerning the use of extraneous offense evidence.
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 Applicant had any other prior felony convictions which could be substituted for the probated sentence to properly enhance punishment to the second degree felony range. The trial court shall make findings of fact as to whether the alleged enhancement error in this case could be cured by entering a judgment nunc pro tunc. 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: June 24, 2009
Do not publish