Carter, Alan Randolph Jr. ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-64,258-01

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EX PARTE ALAN RANDOLPH CARTER, JR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 686485D IN THE 371ST DISTRICT COURT FROM TARRANT COUNTY

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   Per curiam.



O R D E R  

This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, § 3, TEX.CODE CRIM.PROC. Applicant was convicted of murder and punishment was assessed at confinement for thirty-five years. The conviction was affirmed on appeal, Carter v. State, No. 02-00-251-CR, (Tex. App.- Fort Worth, delivered August 27, 2001, no pet.).  

Applicant contends that his trial counsel was ineffective, inter alia, because he did not request an instruction limiting the admissibility to impeachment for prior inconsistent statements of a witness. The trial court has made findings of fact that counsel did not request a limiting instruction because he did not believe the record supported the instruction, and that counsel attempted to show that the statements were not credible. However, we do not believe that those factual findings are sufficient to completely resolve the issues presented because they do not show why counsel believed the instruction was not necessary, or why such an instruction would have been inconsistent with a strategy to discredit the statements themselves.

It is the Court's opinion that additional facts need to be developed and that the trial court is the appropriate forum. Therefore, the trial court is ordered to conduct an evidentiary hearing at which Applicant would have an opportunity to prove his allegations, and the trial court is not limited to the above issues if the court believes other facts relevant to the legality of Applicant's confinement should be determined.

The trial court should then make additional findings of fact as to whether the statements were admitted for any purpose other than impeachment, why counsel did not believe the limiting instruction was necessary, whether a limiting instruction would have been incompatible with a strategy to discredit the statements, and whether any evidence was presented to show Applicant either killed the complainant or was a party to the killing other than evidence of motive, proximity to the offense, and the challenged statements. The court may also make findings of fact as to any other matters the court deems relevant to the legality of Applicant's confinement.

Since this Court does not hear evidence, Ex parte Rodriguez, 334 S.W.2d 294 (Tex.Cr.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. The hearing conducted pursuant to this order shall be held within 90 days of the date of this order. ⁽¹⁾ The trial court's findings of fact, a transcription of the court reporter's notes, and any other supplementation of the record shall be returned to this Court within 120 days of the date of this order. ⁽²⁾

DELIVERED: May 24, 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.