IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-75,130-01
EX PARTE NEVILLE THOMAS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1215415-A IN THE 351ST JUDICIAL DISTRICT COURT
FROM HARRIS 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 pleaded guilty to possession of marijuana and was sentenced to five years’ imprisonment. He did not appeal his conviction.
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to investigate or challenge the validity of the search and seizure leading to the discovery of the drugs. Applicant also alleges that his co-defendant signed an affidavit taking responsibility for the drugs and stating that Applicant had no knowledge of them, but that counsel failed to move for a dismissal of the charges on the basis of this statement.
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 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 trial counsel investigated the validity of the search and seizure in this case. The trial court shall make findings as to whether counsel considered filing a motion to suppress the evidence, and if not, why not. The trial court shall make findings as to whether Applicant’s co-defendant, Willie Alexander, signed an affidavit taking sole responsibility for the drugs, and if so, the trial court shall supplement the habeas record with a copy of such affidavit. If such an affidavit exists, the trial court shall make findings as to whether Applicant’s trial counsel sought dismissal of the charges against Applicant on the basis of such affidavit, and if not, why not. The trial court shall make findings 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.
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: January 12, 2011
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