Ashton, Lindy O'dane ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-63,744-01

---

EX PARTE LINDY ODANE ASHTON, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM TAYLOR COUNTY

IN THE 42^ND JUDICIAL DISTRICT COURT

TRIAL COURT CAUSE NO. 20663-A

---

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 indecency with a child, and punishment was assessed at confinement for thirty-five years. Applicant's conviction was affirmed on appeal. Ashton v. State, No. 11-03-00322-CR (Tex. App. --Eastland, delivered March 17, 2005, no pet.).

Applicant contends in relevant part that he was provided ineffective assistance of counsel and that exculpatory evidence was withheld by the prosecution.

The trial court has recommended that relief be denied, but 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. Because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court shall 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, or it may order a hearing. 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 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 Applicant was provided effective assistance of counsel and whether the prosecution withheld exculpatory evidence. By way of inclusion, but not by way of limitation, the trial court shall address whether counsel conveyed a plea bargain offer, if any; why Landy Ashton was not called as a witness for the defense; and whether there were any exculpatory undisclosed witness statements that were not tendered to the defense and, if not, why not.

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 1st 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.