Thomas, James Russell Jr. ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-72,097-02

---

EX PARTE JAMES RUSSELL THOMAS, JR., Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W02-73689-V(B) IN THE 292^ND JUDICIAL DISTRICT COURT FROM DALLAS 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 was convicted of aggravated sexual assault of a child and sentenced to fifty years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Thomas v. State, No. 05-03-01630-CR (Tex. App. - Dallas, November 8, 2004).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance and that the State withheld favorable evidence from the defense. Applicant alleges that trial counsel failed to investigate, failed to consult with an expert on child sexual abuse, failed to retain medical experts, failed to prepare a defense or advance the defense of actual innocence, failed to properly object to hearsay testimony from the complainant's therapist which did not comply with the medical treatment exception, failed to object to the introduction of State's exhibit 5 on the basis of irrelevance, and failed to investigate the complainant's propensity to be untruthful and to commit theft. Applicant also alleges that the State withheld the report of an intake interview with the complainant's mother at the Dallas Children's Advocacy Center, which reflected that the complainant had been lying and stealing, both "previously" and "recently." Applicant alleges that withholding this evidence allowed the prosecutor to argue during closing that Applicant had presented no evidence of the complainant's untruthfulness.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (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 obtain an affidavit from Applicant's trial counsel responding to Applicant's claims of ineffective assistance of counsel. The trial court shall also obtain an affidavit from the trial prosecutor, stating whether or not the intake report from the Dallas Children's Advocacy Center was provided to the defense prior to trial, and if not, why not. 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 supplement the habeas record with a copy of the trial transcript, including any pre-trial motions and the trial exhibits. The trial court shall then make findings of fact 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 findings of fact as to whether the State withheld material, favorable evidence from the defense. 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: March 7, 2012

Do not publish