Ford, Phillip Dwayne ( 2018 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-89,021-01
EX PARTE PHILLIP DWAYNE FORD, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W09-56554-V (A) IN THE 292ND DISTRICT COURT
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 aggravated
assault and sentenced to twenty-five years’ imprisonment. The Fifth Court of Appeals affirmed his
conviction. Ford v. State, No. 05-11-00530-CR (Tex. App. — Dallas 2012) (not designated for
publication).
Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance
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This Court has reviewed Applicant’s other claims and finds them to be without merit.
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because trial counsel failed to file a motion to suppress on the basis of an unlawful arrest, failed to
request jury instructions on necessity and self-defense, and did not allow Applicant to testify on his
own behalf.
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. Trial
counsel shall state whether he believed there was any basis upon which to file a pre-trial motion to
suppress, and if so, why he did not do so. Trial counsel shall state whether there was evidence that
Applicant acted out of necessity or self-defense, and if so, why he did not request instructions on
those defenses in the jury charge. Trial counsel shall state whether he advised Applicant that the
decision of whether or not to testify belonged to Applicant, and whether Applicant indicated a desire
to testify on his own behalf. 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 24, 2018
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