IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 92880 IN THE 252ND JUDICIAL DISTRICT COURT
FROM JEFFERSON 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 pleaded guilty to aggravated kidnapping in exchange for ten years' deferred adjudication community supervision. His guilt was later adjudicated, and he was sentenced to seventy-five years' imprisonment. He did not appeal his conviction.
Applicant contended, inter alia, that his adjudication counsel rendered ineffective assistance because counsel did not move to recuse or disqualify the trial judge from presiding over the adjudication proceedings. One of the allegations in the State's motion to adjudicate was that Applicant threatened the trial judge. This Court remanded to the trial court, and adjudication counsel submitted an affidavit, in which he stated that he discussed the recusal issue with Applicant, and that it was his belief that Applicant liked the trial judge, denied that his statements were intended as threats to the trial judge, and had no objection to having the trial judge preside over the adjudication proceedings.
While this case was on remand, Applicant moved to recuse and disqualify the trial judge from considering his habeas application. This Court remanded to the trial court for a ruling on Applicant's motions. On November 29, 2010, the Presiding Judge of the Second Administrative Judicial Region signed an order granting the motion to recuse the trial judge from considering his habeas application. However, it does not appear that a new judge has been assigned to make findings of fact addressing Applicant's habeas allegations. Because those allegations are still unresolved, Applicant's habeas application is still pending in this Court.
The Presiding Judge of the Second Administrative Judicial Region of Texas is ordered to assign a new habeas judge to address the claims raised in Applicant's habeas application, for which this Court remanded the matter on January 13, 2010. The new habeas judge shall 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 adjudication attorney was deficient in failing to move to recuse or disqualify Judge Walker from presiding at the adjudication hearing, 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: June 15, 2011
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