IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. F-0334509-U IN THE 291ST 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 sexual assault and sentenced to ten years' imprisonment and a ten thousand dollar fine. The Fifth Court of Appeals affirmed his conviction. Smith v. State, No. 05-06-183-CR (Tex. App.-Dallas, delivered March 5, 2007, pdr ref'd).
Applicant contends that his trial counsel rendered ineffective assistance by: (1) failing to properly and timely object to the testimony of both Kayla Smith and Dr. Gottlieb, the State's expert; (2) failing to request instructions pursuant to Tex. Code Crim. Pro. Art. 38.07 regarding corroborative testimony; (3) making improper comments that denigrated Applicant, and (4) failing to adequately argue that the statute under which Applicant was tried was unconstitutional. Applicant also contends that appellate counsel was ineffective for filing an Anders brief when there were non-frivolous issues to be raised.
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). The trial court and the State agreed to findings that recommend granting an out of time appeal on the basis of ineffective assistance of appellate counsel. There is no indication in the record that appellate counsel was given an opportunity to respond to Applicant's allegations. There are also no findings by the trial court regarding the Court of Appeals' review of Applicant's pro se appellate brief, which allegedly raised the claims Applicant states should have been raised by appellate counsel.
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 and appellate counsel with the opportunity to respond to Applicant's claims 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 make findings as to whether the issues Applicant states should have been raised by appellate counsel were heard and rejected by the court of appeals. 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: March 25, 2009
Do not publish