IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-85,538-01
EX PARTE BILLY JACK VERCHER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. C-12-0815-SB-W-1 IN THE 340TH DISTRICT COURT
FROM TOM GREEN COUNTY
Per curiam. ALCALA , J., filed a concurring opinion.
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 aggravated
robbery and sentenced to thirty years’ imprisonment. The Third Court of Appeals affirmed his
conviction. Vercher v. State, No. 03-13-00799-CR (Tex. App. — Austin, Oct. 7, 2015) (not
designated for publication).
Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance
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This Court has considered Applicant’s other claims and finds them to be without merit.
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because counsel did not object or try to negotiate an immunity agreement when the prosecutor
threatened to prosecute defense witness and co-defendant Patrick Semple for enhanced aggravated
assault if he testified that he held Applicant at gunpoint to compel him to participate in the offense,
causing Semple to invoke his Fifth Amendment right against self-incrimination. Applicant also
alleges that trial counsel should have objected when the prosecutor stated that the State had pictures
of Applicant relaxing in the home of his co-defendant after the robbery, when no such pictures
existed. Applicant alleges that trial counsel should have objected when the prosecutor improperly
commented on Applicant’s failure to give a statement to police.
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 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
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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 must
be requested by the trial court and shall be obtained from this Court.
Filed: October 5, 2016
Do not publish
Vercher, Billy Jack
Combined Opinion