IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
ON APPLICATIONS FOR WRIT OF HABEAS CORPUS
CAUSE NOS. CR01425, CR01426, CR01427, and CR01428 IN THE 102nd DISTRICT COURT
FROM RED RIVER 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 these applications for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of burglary of a habitation, aggravated assault with a deadly weapon, aggravated robbery, and aggravated kidnapping. The Applicant was sentenced to, respectively, forty-five years', twenty years', forty-five years', and forty-five years' imprisonment. He did not appeal his convictions.
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because he failed to investigate and interview a witness named Reginald Hicks. Specifically, the Applicant alleges that Mr. Hicks was prepared to recant his identification of the Applicant in these cases, the prosecutor would not accept Mr. Hicks' recantation, and that counsel knowingly failed to investigate this matter. The Applicant has included sworn affidavits, purportedly made by both Mr. Hicks and Ms. Donna Boyles, in support of his claim.
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 shall also provide the prosecutor with the opportunity to respond to Applicant's claim. 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 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.
These applications 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 10, 2010
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