Lowe, Lloyd Forrest ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-66,085-03

---

EX PARTE LLOYD FORREST LOWE, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR24975 IN THE 75^TH DISTRICT COURT FROM LIBERTY COUNTY

---

   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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and burglary of a habitation, and sentenced to imprisonment for seventy and thirty-five years, respectively. The Ninth Court of Appeals affirmed his convictions. Lowe v. State, No. 09-06-00122-CR (Tex. App.-Beaumont, delivered Nov. 11, 2006, no pet.).

Applicant contends, among other things, that his trial counsel rendered ineffective assistance because he failed to: (1) investigate reports prepared by Sheriff Deputy Phillip Fairchild and Texas Ranger Grover Huff; (2) subpoena Huff; (3) question Fairchild about inconsistent statements David Roberts made; (4) impeach Roberts with his inconsistent statements; (5) argue that Applicant was under duress and not a willing participant in the offenses; and (6) timely object when a State witness testified that she had seen several mug shots of Applicant.

On April 2, 2008, we remanded this application and directed the trial court to make findings of fact and conclusions of law. On remand, trial counsel responded to Applicant's claims in an affidavit and stated that "the record of the trial reflects to the contrary." He also stated that he questioned Fairchild and Huff "very extensively." In its findings of fact and conclusions of law, the trial court concluded that trial counsel was not ineffective and recommended that this Court deny relief.

We believe the record is not sufficient to resolve Applicant's claims. The trial court did not make findings of fact, and counsel did not specifically respond to Applicant's claims. Accordingly, the trial court shall provide Applicant's trial counsel with a second opportunity to respond to Applicant's claims of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).

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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make specific findings of fact as to whether trial counsel failed to: (1) investigate reports prepared by Sheriff Deputy Phillip Fairchild and Texas Ranger Grover Huff; (2) subpoena Huff; (3) question Fairchild about inconsistent statements David Roberts made; (4) impeach Roberts with his inconsistent statements; (5) argue that Applicant was under duress and not a willing participant in the offenses; and (6) timely object when a State witness testified that she had seen several mug shots of Applicant. The trial court shall then determine whether the performance of Applicant's trial counsel 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 claims 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. The reporter's record of Applicant's trial shall also 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: February 11, 2009

Do not publish