McCasland, Michael Edward ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-71,058-01

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EX PARTE MICHAEL EDWARD MCCASLAND, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F38973A IN THE 18TH DISTRICT COURT FROM JOHNSON 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 four counts of sexual assault, four counts of indecency with a child, and four counts of possession of child pornography. He was sentenced to twenty years' imprisonment on four counts, to fifteen years on four counts, and to ten years on four counts, all of which are to be served consecutively. The Tenth Court of Appeals affirmed his conviction. McCasland v. State, No. 10-05-432-CR (Tex. App. - Waco, delivered February 28, 2007, pet ref'd.)

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because he did not call several witnesses who would have discredited the testimony of one of the complainants, whose testimony constituted the primary evidence for several of these counts. Applicant submitted several affidavits in support of these allegations, and trial counsel submitted an affidavit which refuted several of them. The trial court signed an order concluding that there were no controverted, previously unresolved issues of fact material to the legality of the Applicant's confinement, but the conflicting affidavits do not support that conclusion. This record contains a portion of proposed findings of fact, but those findings are not signed.

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. 1960), the trial court is the appropriate forum for making findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d), including conducting an evidentiary hearing, relying on previously submitted affidavits, or obtaining additional affidavits. In the appropriate case, the trial court may rely on its personal recollection. Id.

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. Those findings shall include a brief summary of the evidence presented at trial, a summary of what testimony could have been presented at trial but was not, if any, and conclusions of whether counsel was ineffective in failing to present that evidence and whether presentation of any such evidence might have resulted in different verdicts. 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 29, 2009

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