Smith, Tommy Jewel ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-65,404-01

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EX PARTE TOMMY JEWEL SMITH, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 98-428,286-A IN THE 137^TH JUDICIAL DISTRICT COURT FROM LUBBOCK COUNTY

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   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 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 ninety-nine years' imprisonment. The Seventh Court of Appeals affirmed his conviction. Smith v. State, No. 07-99-00057-CR (Tex. App.-Amarillo, delivered August 19, 1999, no pet.).

Applicant contends that his trial counsel rendered ineffective assistance because he failed to (1) argue self-defense and necessity; (2) investigate whether the complainant's injuries were from a pre-existing condition; and (3) interview Diane Foster, Tommy Drake, Jeremy Penley, Anthony Mayfield, Patrick Robinson, Carla Williamson, Kim Robinson, Tonya Lane, and a person named Monty.

On August 30, 2006, we remanded the application and instructed the trial court to make findings of fact as to whether counsel's performance was deficient and, if so, whether Applicant was prejudiced. Strickland v. Washington, 466 U.S. 608 (1984). On remand, after reviewing the application, the district clerk's file, and counsel's affidavit, the trial court concluded that there "are no controverted, previously unresolved facts material to the legality of the applicant's confinement." The trial court recommended either dismissing or denying the application.

We believe, however, that the trial court's findings of fact are not sufficient to resolve Applicant's claims. Specifically, trial counsel did not address whether he investigated the cause of the complainant's injuries. Accordingly, the trial court shall provide counsel with a second opportunity to respond to Applicant's claims. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).

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 further findings of fact as to whether the performance of 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. 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: December 13, 2006

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