eLaws | Code of Federal Regulations | United States Code |
 All Courts
 State Courts
 Court of Criminal Appeals of Texas
 2013-05

Sherrill, James Wesley ( 2013 )


Menu:

















  • IN THE COURT OF CRIMINAL APPEALS

    OF TEXAS



      

    NO. WR-79,186-01

    EX PARTE JAMES WESLEY SHERRILL, Applicant


    ON APPLICATION FOR A WRIT OF HABEAS CORPUS

    CAUSE NO. 30046 IN THE 3RD DISTRICT COURT

    FROM ANDERSON 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 sexual assault and aggravated kidnapping and sentenced to ninety-nine years' imprisonment for each conviction. The Twelfth Court of Appeals affirmed his convictions. Sherrill v. State, No. 12-11-00156-CR (Tex. App.--Tyler May 31, 2012) (unpublished).

    Applicant contends that his trial counsel rendered ineffective assistance because, among other things, he did not move to recuse the trial judge after the judge became a complaining witness against him. Applicant alleges that the bailiff testified outside the presence of the jury that Applicant and his co-defendants made statements about killing the trial judge and prosecutors. Applicant alleges that, after this testimony, the judge instructed the state to investigate the matter "and to charge the [Applicant] in the matter."

    Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 order trial counsel 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. 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. Applicant is free to avail himself of the procedures outlined in Ex parte Sinegar, 324 S.W.3d 578 (Tex. Crim. App. 2010).

    The trial court shall make findings of fact and conclusions of law as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. Additionally, the trial court shall make specific findings of fact as to whether he directed the State to charge Applicant in the matter. 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.



    Filed: May 8, 2013

    Do not publish