IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-79,336-02
EX PARTE KEITH EARL JONES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 30095-B
IN THE 3RD DISTRICT COURT FROM ANDERSON 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of driving while intoxicated and sentenced to sixty years’ imprisonment. The Sixth Court of Appeals affirmed his conviction. Jones v. State, No. 06-11-00016-CR (Tex. App.–Texarkana December 2, 2011).
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance by: failing to inform him that the State filed an intent to enhance Applicant to the habitual punishment range, causing him to reject an eight year plea bargain; failing to object to the State’s argument and proffered testimony on retrograde extrapolation to show that Applicant was above the legal limit of blood alcohol content at the time of the crash; and failing to object to the lab report listing his blood alcohol content because the lab technician who produced the report did not testify at trial.
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). 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 trial counsel to respond to Applicant’s claim of ineffective assistance of counsel. 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 as to whether counsel informed Applicant that the State intended to bring forth enhancements after such notice was filed. The trial court shall make findings as to whether Applicant knew that due to his prior felony convictions, he could be facing habitual punishment. The trial court shall make findings as to whether retrograde extrapolation testimony was given and if so, whether counsel objected, and if not, why not. The trial court shall also make findings as to if such testimony was given, whether it influenced the jury’s verdict. The trial court shall make findings as to whether a forensic lab report was entered into evidence without the proper foundation, and if so, whether counsel objected. The trial court shall make findings of fact and conclusions of law as to whether the performance of Applicant’s trial counsel 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. 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: July 24, 2013
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