Trahan, Sidney Eugene ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-67,067-01

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EX PARTE SIDNEY EUGENE TRAHAN, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D 020436AR IN THE 260TH DISTRICT COURT FROM ORANGE 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of sexual assault and sentenced to life imprisonment. The Ninth Court of Appeals affirmed his conviction. Trahan v. State, No. 09-04-00261-CR (Tex. App. - Beaumont, July 13, 2005, pet. ref'd).

Applicant contends that his trial counsel rendered ineffective assistance in three ways. First, counsel failed to seek an expert witness to explain the effects of gross mental retardation on the ability to distinguish reality from fantasy and to accurately perceive and recount events. Second, counsel allowed the State to bolster the victim's testimony when it had not been impeached on cross-examination. Third, counsel failed to object and take steps to preserve the matter for appeal when the trial court improperly restricted jury voir dire with a time limit while counsel was still inquiring whether members of the venire would view the defendant's failure to testify as an indication of guilt.

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 findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to 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 and court records. 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 whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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.

This application 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: April 18, 2007

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