Pope, Carlton Oneal ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NOS. WR-66,613-01 & -02

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EX PARTE CARLTON ONEAL POPE, Applicant

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ON APPLICATIONS FOR WRIT OF HABEAS CORPUS CAUSE NOS. W04-71050-R(A) & W02-54954-R(A) IN THE 265TH DISTRICT COURT FROM DALLAS COUNTY

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   Per curiam. O R D E R  

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court these applications for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of aggravated robbery and sentenced to 28 years' imprisonment. The Fifth Court of Appeals dismissed his appeals. Pope v. State, Nos. 05-04-807-CR and 05-04-808-CR (Tex. App. - Dallas, delivered September 15, 2005, no pet.).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because she did not obtain an alibi witness and another witness, a neighbor of the complainant who would have testified that no offense occurred at the time and place alleged, such that Applicant was coerced into pleading guilty to an offense he did not commit. Counsel has submitted an affidavit that her investigator was unable to locate anyone who could verify Applicant's statement of facts, but does not specifically address whether Applicant advised her of these alleged witnesses, whether they were located, or what they might have testified.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for making findings of fact. The trial court shall provide Applicant's trial counsel with another opportunity to respond to these specific allegations in Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to a brief summary of what evidence the State proposed to offer if Applicant had not pled guilty; whether Applicant told his trial attorney about the witnesses he now alleges were not called; and why these witnesses could not be located or what their testimony would have been. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

These applications will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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. Any extensions of time shall be obtained from this Court.   

Filed: October 31, 2007

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