IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 57,842-D IN THE 320TH DISTRICT COURT
FROM POTTER 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 possession of a controlled substance and sentenced to seven years' imprisonment. The Seventh Court of Appeals affirmed his conviction. Jaramillo v. State, No. 07-09-0105-CR (Tex. App.-Amarillo Jan. 20, 2010) (unpublished).
Applicant contends that the indictment did not provide sufficient notice and that his trial counsel rendered ineffective assistance because, inter alia, he did not file a written pre-trial motion to suppress and then waived his oral challenge to the legality of the traffic stop that led to Applicant's arrest and conviction.
According to the appellate opinion, Applicant was a passenger in a car that was stopped for no other reason than to serve a subpoena and counsel waived any objections to the stop when controlled substances discovered after the stop were admitted into evidence. Jaramillo v. State, No. 07-09-0105-CR, at (Tex. App.-Amarillo Jan. 20, 2010) (unpublished). 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 obtain a response from trial counsel addressing 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). 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. Specifically, the trial court shall make findings as to whether there was a lawful basis for the traffic stop and whether counsel timely moved to suppress all evidence seized as a result of the stop. The trial court shall also make specific findings as to whether there was a strategic reason to state "no objection" to the admission of controlled substance evidence once trial counsel was satisfied with the chain of custody. 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: September 28, 2011
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