LUSTER, GEORGE DANIEL Jr. ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-63,685-02

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EX PARTE GEORGE DANIEL LUSTER, JR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 53755 IN THE 264^TH JUDICIAL DISTRICT COURT FROM BELL 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual assault and sentenced to forty-five (45) years' imprisonment. The Third Court of Appeals affirmed his conviction. Luster v. State, No. 03-04-00674-CR (Tex. App. - Austin, April 7, 2005, pet. ref'd).

Applicant contends, inter alia, that counsel rendered ineffective assistance in the initial proceeding in which the adjudication of guilt was deferred and in the adjudication proceeding. He also claims that his conviction was obtained in violation of double jeopardy and due process. Concerning the initial proceeding, Applicant claims that counsel misrepresented the extent and results of his investigation by telling Applicant that he had been unable to contact potential alibi witnesses, when in fact counsel had not attempted to contact such witnesses. Concerning the adjudication proceeding, Applicant claims that counsel: did not raise Applicant's defense of inability to pay the fees required by the conditions of supervision or obtain documentation that would have supported this defense; and did not obtain or present to the court documentation of Applicant's negative drug test results and his successful completion of treatment programs. Applicant also claims that his conviction was obtained in violation of double jeopardy and due process because the same drug test results that were the basis for modifying the conditions of supervision were also the basis for adjudication and revocation.

The trial court has entered an order finding that Applicant's claim concerning the initial proceeding is procedurally barred because it was not raised on direct appeal prior to adjudication. Additionally, the court finds that Applicant's claims concerning the adjudication proceeding are without merit. Finally, the court finds that Applicant's claim of double jeopardy is without merit because sanctions imposed by a probation officer do not trigger the double jeopardy protections of the constitution if there is a subsequent adjudication. However, we do not believe that Applicant's first claim is necessarily procedurally barred, and additional findings are needed to completely resolve the issues presented. As to the claims described above, Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide trial counsel in the initial proceeding and the adjudication proceeding with the opportunity to respond to Applicant's claims of ineffective assistance of counsel. Additionally, the trial court may order affidavits, depositions, or interrogatories from the appropriate officials at the Texas Department of Criminal Justice, Parole Division, the Board of Pardons and Paroles, and any other person having information the trial court deems relevant to resolving the matter. 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 and court records. 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 as to whether counsel in the initial proceeding misrepresented the extent and results of his investigation, and if so, whether this conduct constituted deficient performance that resulted in prejudice. The trial court shall make findings of fact as to whether counsel in the adjudication proceeding failed to raise Applicant's defense of inability to pay required fees and to obtain and present documentation that would have supported this defense, and whether counsel failed to obtain and present to the court documentation of Applicant's negative drug test results and successful completion of treatment programs. The court shall make findings as to whether such conduct, if any, constituted deficient performance that resulted in prejudice. Next, the trial court shall make findings as to whether the conditions of deferred adjudication community supervision in this case were modified on the basis of the same drug test results that formed the basis for adjudication in this case. See Ex parte Byrd, 752 S.W.2d 559 (Tex. Crim. App. 1988); see also Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. 1982). 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 ninety (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 one hundred twenty (120) days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: September 13, 2006

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