Johnson, Larry B ( 2019 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-88,210-06
EX PARTE LARRY B. JOHNSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W09-00662-H IN THE CRIMINAL DISTRICT COURT NO. 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 entered an open plea of guilty to
sexual assault of a child and was sentenced to twenty years’ imprisonment. The Fifth Court of
Appeals affirmed his conviction. Johnson v. State, No. 05-09-01033-CR (Tex. App. — Dallas, May
26, 2010) (not designated for publication).
Applicant contends, among other things,1 that his trial counsel rendered ineffective
1
This Court has considered Applicant’s other claims and finds them to be without merit.
2
assistance, that the State presented false evidence at trial, and that he was denied his right to petition
this Court for discretionary review. The record reflects that the trial court signed an order
designating some, but not all of these issues for further resolution on October 8, 2018, appointing
a writ master to resolve those issues. The writ master appointed by the trial court was also
Applicant’s appellate attorney. The habeas record was properly forwarded to this Court when 180
days had passed since the State received service of the habeas application, but contains no affidavits
or findings of fact addressing Applicant’s claims.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). 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 and appellate counsel to respond to Applicant’s claims.
Specifically, trial counsel shall state whether the State filed notice of intent to enhance
Applicant’s punishment in this case using Applicant’s prior convictions from a military court. Trial
counsel shall state whether Applicant advised counsel that the parts of those convictions pertaining
to indecent acts with another and assault consummated by battery were set aside on appeal. Trial
counsel shall state whether the surviving part of those convictions involving failure to obey a lawful
order and making a false official statement were felony offenses available to enhance punishment
in this case. Trial counsel shall state whether the State extended any plea offers in this case, and if
so, whether counsel communicated any such offers to Applicant. Trial counsel shall state what
advice, if any, he gave to Applicant as to whether he should plead guilty or take the case to trial.
Trial counsel shall state whether he advised Applicant that he had a good rapport with the trial court
3
judge and could get Applicant probation if he pleaded guilty.
Trial counsel shall state whether he considered filing a motion to suppress evidence on the
basis on of an illegal arrest, search and seizure, and if he did consider filing such a motion but
elected not to, why not.
Trial counsel shall state whether, when the State cross-examined Applicant regarding the
prior military convictions for indecent acts and/or assault, the prosecutor also introduced the
judgment(s) from those prior convictions. Trial counsel shall state whether he objected, or sought
to introduce the fact that those convictions had been set aside on appeal. 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.
Appellate counsel shall state whether she was aware that Applicant had been transferred back
to TDCJ after she sent the notice regarding the court of appeals’ opinion via certified mail to the
county jail. Appellate counsel shall state when she received the notice back undelivered, and when
she re-sent the notice to Applicant at TDCJ. Appellate counsel shall state whether she re-sent the
notice via certified mail, and if not, why not.
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.
Because Applicant's conviction in this case was final in 2010, but he did not file this
application until approximately nine years later, there is a possibility that Applicant's claims may be
precluded by laches. However, because the record is silent on the circumstances that may excuse
this substantial delay, we reserve judgment as to whether laches bars Applicant's request for relief
4
until he is given an opportunity to explain his delayed application. See Ex parte Smith, 444 S.W.3d
661 (Tex. Crim. App. 2014). The trial court shall provide Applicant with the opportunity to explain
his delay in seeking habeas relief, and thereafter the trial court shall make findings of fact and
conclusions of law as to whether Applicant's claims should be barred by laches.
The trial court shall make findings of fact and conclusions of law as to whether Applicant’s
appellate counsel timely informed Applicant that his conviction had been affirmed. 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 make findings as to whether the State introduced evidence with regard to Applicant’s
prior military convictions that was false, and if so, whether that evidence was material to Applicant’s
punishment. 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 claims 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 must
be requested by the trial court and shall be obtained from this Court.
Filed: April 10, 2019
Do not publish