Oliver, Randy Lee Sr. ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-63,080-01

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EX PARTE RANDY LEE OLIVER, SR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 98-1169-CR IN THE 25^TH JUDICIAL DISTRICT

GUADALUPE COUNTY

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Per curiam.

O R D E R  

This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of two counts of aggravated sexual assault and one count of sexual performance by a child. He was sentenced to confinement for fifty years for each count of aggravated sexual assault and twenty years for the one count of sexual performance by a child. Applicant's conviction was affirmed on appeal. Oliver v. State, No. 04-99-00203-CR (Tex. App.--San Antonio, delivered September 27, 2000, pet. ref'd).

Applicant alleges, inter alia, that counsel was ineffective. Specifically, he contends that counsel failed to object to the testimony of a State expert witness and failed to investigate the Applicant's male anatomy.

The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed, and the trial court is the appropriate forum, because this Court cannot hear evidence. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order affidavits, depositions, or interrogatories from counsel, or it may order a hearing. In the appropriate case the trial court may also rely on its personal recollection.

If the trial court elects to hold a hearing, the court should first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.

Following receipt of additional information, the trial court should make findings of fact as to whether counsel investigated Applicant's claim that his penis was not the penis depicted in the pictures offered as evidence at trial, and whether counsel objected to expert testimony from Sharon Willis regarding the credibility of the complainant, Rose Oliver. If the trial court determines that counsel did not investigate the above claim or did not object to Willis' testimony, it should make findings of fact as to whether counsel was ineffective. The trial court should also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.

Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. ⁽¹⁾ 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. ⁽²⁾

IT IS SO ORDERED THIS THE 24^TH DAY OF MAY, 2006.

DO NOT PUBLISH   

1.

In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

2.

Any extensions of this time period should be obtained from this Court.