IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-68,701-03
EX PARTE TERRELL PERRY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 04F0090-202-B IN THE 202ND JUDICIAL DISTRICT COURT
FROM BOWIE COUNTY
Per curiam.
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 capital murder and sentenced to life imprisonment. The Sixth Court of Appeals affirmed his conviction. Perry v. State, No. 06-06-00179-CR (Tex. App. – Texarkana, October 5, 2007, no pet.). Applicant’s first writ of habeas corpus was dismissed by this Court at Applicant’s request, and was not decided on its merits.
Applicant contends, inter alia, that his trial counsel, who also represented him on direct appeal, rendered ineffective assistance because counsel failed to call a vital defense witness, and failed to preserve errors by making contemporaneous objections at trial. Applicant also alleges that counsel raised issues on direct appeal which had not been preserved, and refused to raise other issues requested by Applicant.
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 first supplement the habeas record with a copy of the trial record and transcript in this case. The trial court shall then make findings of fact as to whether counsel interviewed or subpoenaed Cornelius Coleman to testify at Applicant’s trial, and if not, why not. The trial court shall make findings as to why counsel did not object to the rulings of the trial court regarding limitations on cross-examination of witnesses on Confrontation Clause grounds, but raised such claims as error on direct appeal. The trial court shall make findings as to whether the performance of Applicant’s trial and appellate 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: May 12, 2010
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