IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-81,637-01
EX PARTE MONICE MCKEE ANDERSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F10-51906-H IN THE CRIMINAL DISTRICT COURT #1
FROM DALLAS COUNTY
Per curiam.
ORDER
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 capital murder
and sentenced to life imprisonment. The Fifth Court of Appeals affirmed his conviction. Anderson
v. State, No. 05-11-00259-CR (Tex. App. – Dallas, April 30, 2013).
Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance
because counsel failed to communicate plea offers, failed to object to testimony which violated
1
This Court has reviewed Applicant’s other claims and found them to be without merit.
2
Applicant’s confrontation rights, failed to make appropriate arguments during a motion to suppress
evidence, and failed to request an instruction on an affirmative defense.
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 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 State made any pre-trial plea
offers, and if so what those offers were, whether they were communicated to Applicant, and whether
Applicant was given the opportunity to accept or reject any such offers. The trial court shall make
findings as to whether it would have erred in overruling confrontation objections to the testimony
of Detective Gonzalez regarding being told by a woman that the telephone number he had called
belonged to Applicant, and to the testimony of Phaylon Wamsley that Derric Elmore was to tell
Applicant that they planned to commit a robbery, had such objections been made. The trial court
shall make findings as to whether a motion to suppress would likely have been granted had counsel
argued that the State should have acquired a warrant for Applicant’s phone records and that
Applicant had a Fourth Amendment privacy right in those phone records. The trial court shall make
3
findings as to whether there was evidence or testimony in the record which would have supported
an instruction on defense of others had such an instruction been requested. The trial court shall make
findings 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 23, 2014
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