Skolnik, Brian ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-76,252-02
EX PARTE BRIAN SKOLNIK, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. S-08-3093CR-HC-2 IN THE 36TH DISTRICT COURT
FROM SAN PATRICIO COUNTY
Per curiam. ALCALA , J., filed a concurring opinion in which JOHNSON and
RICHARDSON , JJ., joined. YEARY , J., filed a concurring opinion in which KEASLER and
HERVEY , JJ., joined.
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 charged with murder. While
he originally pleaded “not guilty” and proceeded to trial by jury, immediately after the State rested
he changed his plea to “guilty.” Following a punishment trial, he was sentenced to forty years’
imprisonment. The Thirteenth Court of Appeals affirmed his conviction. Skolnik v. State, No. 13-
09-00058-CR (Tex. App. — Corpus Christi–Edinburg, July 15, 2010) (not designated for
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publication).
Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance
because counsel failed to prepare a defensive strategy, failed to make an opening statement, failed
to present any witnesses, failed to object to false testimony by the State’s witnesses, failed to request
a mistrial when juror misconduct came to light, advised Applicant that there was no money to pay
for a defense expert witness, and coerced Applicant into changing his plea after the State rested.
Applicant also alleges that his original trial counsel, who developed medical issues and had to
withdraw from the representation failed to inform Applicant that he had terminal brain cancer, and
advised Applicant to reject pre-trial plea offers, telling him that the case could be won at trial
because the State lacked evidence.
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 supplement the record with a copy of the trial docket or any other
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This Court has considered Applicant’s other claims and finds them to be without merit.
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documents showing when Applicant’s original counsel withdrew from the representation and when
a new attorney was appointed or retained. The trial court shall make findings as to whether the State
made any pre-trial plea offers, and if so, whether Applicant rejected such offers on the record or in
writing. The trial court shall then 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: June 29, 2016
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