Lewis, Tyrone L. ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-57,218-02

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EX PARTE TYRONE L. LEWIS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 2001-436,428 IN THE 140^TH DISTRICT COURT

LUBBOCK 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 by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art 11.07. Applicant was convicted of possession of a controlled substance, and punishment was assessed at sixteen (16) years' confinement. Applicant's conviction was affirmed on appeal. Lewis v. State, No. 07-02-0054-CR (Tex. App. -- Amarillo, delivered, July 16, 2002, pet. ref'd).

Applicant contends that he received ineffective assistance of counsel, in that his defense at trial was that another person could have possessed the drugs in the house where Applicant was found, but counsel did not investigate or present evidence at trial showing that two people in addition to Applicant, his girlfriend, and her young daughter lived at the house.

The trial court has entered an order concluding "that there are no controverted, previously unresolved facts material to the legality of the applicant's confinement." However, we disagree. Applicant has stated facts requiring resolution. Because this Court does not hear evidence, it is necessary for the matter to be remanded to the trial court for resolution. This trial court shall resolve the factual issues as set out in Tex. Code Crim. Proc. art 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from counsel, or it may hold a hearing. In the appropriate case, the trial court may rely on personal recollection. The State shall also be given an opportunity to respond to the application.  

If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the 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 shall make findings of fact as to whether two additional people lived in the house and whether counsel knew or through reasonable investigation should have known that two additional people lived in the house, and why counsel did not present any evidence of these additional occupants at trial. The trial court shall 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 Rodriguez, 169 Tex.Cr.R. 367, 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. The trial court shall resolve the issues presented within ninety (90) days of the date of this order. ⁽¹⁾ A supplemental transcript containing all affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's 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. ⁽²⁾

IT IS SO ORDERED THIS THE 5th day of April, 2006.

EN BANC

DO NOT PUBLISH

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

2. Any extensions of this time period shall be obtained from this Court.