Bryant, T Van Jr. ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-44,988-03

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EX PARTE TVAN BISHOP BRYANT, JR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM JACKSON COUNTY

IN CAUSE NO. 02-11-6683

IN THE TWENTY-FOURTH DISTRICT COURT

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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 delivery of cocaine and sentenced to confinement for twenty years. Applicant's conviction was affirmed on appeal. Bryant v. State (Tex. App.--Corpus Christi 2004, pet. ref'd).

Applicant contends that counsel was ineffective. He contends that counsel failed to investigate whether the offense was committed in a drug free zone and, specifically, whether any location within 1000 feet of the delivery constituted a playground as defined under Tex. Health and Safety Code § 481.134(a).

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 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 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 shall 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 shall 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 what investigation counsel conducted and what evidence was presented to establish that the delivery occurred within 1000 feet of a playground as defined under Tex. Health and Safety Code § 481.134(a). If the trial court finds that counsel failed to adequately investigate the location of the delivery, it shall make findings of fact as to whether counsel was ineffective. 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 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 8^th DAY OF FEBRUARY, 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.