IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 51972A IN THE 240TH DISTRICT COURT
FROM FORT BEND 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 retaliation and assault/family-violence, both as a habitual offender, and was sentenced to two concurrent terms of twenty-five years' imprisonment. He did not appeal the convictions.
The police investigation shows that Applicant had a history of mental health issues, including suicide attempts, bipolar disorder, and auditory hallucinations. Applicant alleges that he told trial counsel of these mental problems, his anti-psychotic medications for them, including Risperdal, Zyprexa, Wellbutrin, Seroquel, Thorazine, and Elavil, and his belief that the complainant would testify that Applicant was acting strangely and was hearing voices while he committed the offenses.
Applicant asserts that counsel failed to investigate the mental health issues, and he argues that had counsel properly investigated, he would have determined that Applicant was insane at the time of the offense and presented this defense at trial. Instead, Applicant complains that trial counsel only encouraged him to plead guilty. To prevail on an affirmative defense of insanity, a defendant must establish by a preponderance of the evidence that he was insane at the time of the offense. Tex. Code Crim. Proc. art. 46C.153. Insane means that the defendant, at the time of offense and as a result of severe mental disease or defect, did not know that his conduct was wrong. Tex. Penal Code § 8.01.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (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 order Applicant's trial counsel to respond to Applicant's claim of ineffective assistance of counsel by filing an affidavit with the trial court. In addition to obtaining this affidavit, the trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) to resolve the issues. 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 that it deems relevant and appropriate to the disposition of Applicant's claims 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 trial counsel's affidavit and the trial court's supplemental findings of fact, 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 2, 2011
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