Zirus, Scott Ash James

















IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NOS. WR-78,395-01, WR-78,395-02, AND WR-78,395-03


EX PARTE SCOTT ASH JAMES ZIRUS, Applicant


ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. B09-490, B09-552, AND B09-553

IN THE 198TH DISTRICT COURT FROM KERR 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of indecency with a child by contact, two counts of aggravated sexual assault of a child, and continuous sexual abuse of a child. He was sentenced under plea agreements to twenty years in prison for the indecency offense and forty years in prison for each of the remaining offenses. There were no direct appeals.

Applicant alleges his guilty pleas were not voluntary, his trial counsel was ineffective, his guilty pleas were not supported by any evidence, and the proceedings lacked due process because of pretrial publicity.

Regarding the involuntary plea and ineffective assistance claims, Applicant contends trial counsel misled him to believe that a unanimous jury verdict was not required nor was there a presumption of innocence for the charged sex offenses. He also complains trial counsel did not investigate the cases, never discussed them or possible defenses with him, never contacted witnesses Applicant told him about, and did not attempt to suppress statements Applicant made to police. Rather, according to Applicant, trial counsel was only interested in obtaining a plea agreement for the offenses, and he was biased against Applicant, telling Applicant that there could be no substitution of counsel when Applicant inquired about appointment of a new attorney. Applicant further alleges trial counsel told him that an expression of dissatisfaction with the plea agreement or an attempt to withdraw the guilty plea at sentencing would be viewed by the judge as contempt of court, and he states trial counsel would not assist in withdrawing the pleas.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). There is no response from either trial counsel in the record provided to this Court, and there are no findings from the trial court. 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 both trial counsel to respond to Applicant's claims of ineffective assistance by explaining their representation of Applicant, including applicable strategy and tactical decisions. To obtain the responses, the trial court may 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 and conclusions of law regarding Applicant's allegations of involuntary plea, ineffective assistance, no evidence, and lack of due process. The trial court may also make any other findings of fact and conclusions of law it deems relevant and appropriate to the disposition of Applicant's claims for habeas corpus relief.

The applications 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: October 10, 2012

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