McLean, Brent Alan ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. 27,322-03

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EX PARTE BRENT ALAN MCLEAN, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM DENTON COUNTY

IN THE 158^TH JUDICIAL DISTRICT COURT

TRIAL COURT CAUSE NO. F-2005-0312-BWHC1

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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 the offense of sexual performance by a child (count I) and possession of child pornography (count II), and punishment was respectively assessed at confinement for 15 and 5 years.

No direct appeal was taken.

Applicant contends that he received ineffective assistance of counsel by counsel's failing to file and urge a motion to suppress evidence based upon a defective search warrant because it was not supported by an affidavit that sufficiently alleged probable cause.

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. See Taylor v. State, 54 S.W.3d 21 (Tex. App.-Amarillo 2001, no pet.); Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from trial counsel, or it may order a hearing. In the appropriate case the trial court may 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 applicant received effective assistance of counsel, whether a motion to suppress was urged by trial counsel, and if not, whether a properly lodged motion to suppress based upon a defective search warrant lacking probable cause would have been granted. 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, and including a complete copy of the probable cause affidavit shall be returned to this Court within 120 days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 15^TH DAY OF FEBRUARY, 2005.

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.