Aitchison, Kerry Jon AKA ATKINSON, KERRY JON AKA ATTCHISON, KERRY ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-71,704-01

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EX PARTE KERRY JON AITCHISON, AKA KERRY JON ATKINSON, AKA KERRY ATTCHISON, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 21028-A IN THE 42^ND JUDICIAL DISTRICT COURT

FROM TAYLOR 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 possession with intent to deliver a controlled substance and sentenced to ninety-nine years' imprisonment. The Eleventh Court of Appeals affirmed his conviction. Aitchison v. State, No. 11-03-00187-CR (Tex. App. - Eastland, January 31, 2005, pet. ref'd).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to request a mistrial when it was learned that jurors had seen Applicant being escorted into or out of the courtroom in handcuffs and shackles, failed to file a pre-trial motion to suppress evidence of money that was seized from Applicant, failed to present available witnesses and evidence of the true source of that money, and for failing to preserve error by timely objecting to the introduction of the money at Applicant's trial.

On April 1, 2009, this Court remanded the matter to the trial court to obtain findings of fact and affidavits addressing Applicant's allegations of ineffective assistance of counsel. This Court received supplemental documents on August 7, 2009, and findings of fact accompanied by an affidavit from trial counsel on September 24, 2009. In the trial court's findings of fact, the court referred several times to an earlier affidavit provided by counsel, in addition to the affidavit that was included in the supplemental record. However, the earlier affidavit of counsel is not included in the habeas record or in the supplemental record.

The trial court shall supplement the habeas record with an official copy of trial counsel's earlier affidavit. 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: November 4, 2009

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