Clayton, Lloyd Dean ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-69,680-02

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EX PARTE LLOYD DEAN CLAYTON, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2005-1581-C2B IN THE 54TH DISTRICT COURT FROM MCLENNAN 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 felony driving while intoxicated and sentenced to life imprisonment. The Tenth Court of Appeals affirmed his conviction. Clayton v. State, No. 10-06-00254-CR (Tex. App. - Waco, 2007, pet. ref'd) (not designated for publication).

Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to investigate Applicant's prior criminal history and therefore did not know that Applicant had been charged with murder and not capital murder as the prosecutor argued. Applicant alleges that counsel was objectively deficient when he failed to object the prosecutor's argument that Applicant had pleaded guilty to murder and received a life sentence in order to avoid facing a capital murder charge and the death penalty. Applicant alleges that the prosecutor made this argument in the guilt/innocence phase and again in the punishment phase, but that counsel never objected.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), 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 in that it shall order counsel to file an affidavit addressing: (1) whether counsel investigated Applicant's criminal background and, if so, whether counsel discovered that Applicant was charged with murder and not capital murder as the prosecutor argued; and, (2) whether counsel objected to the prosecutor's argument that Applicant previously had faced capital murder charges in the guilt/innocence phase and the punishment phase and if not, the strategic reason counsel decided not to object. 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 whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. Specifically, the trial court shall make findings of fact as to whether counsel investigated Applicant's criminal background and, if so, whether counsel was aware that Applicant had faced murder charges and not capital murder charges as the prosecutor argued. Further, the trial court shall make findings of fact as to whether counsel object to the prosecutor's argument that Applicant had faced capital murder charges in the guilt/innocence phase and the punishment phase and, if not, the strategic reason counsel decided not to object. 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: December 17, 2008

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