Smith, Lawrence Demetrius ( 2017 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-86,560-01
EX PARTE LAWRENCE DEMETRIUS SMITH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 08-0306X(A) IN THE 71ST DISTRICT COURT
FROM HARRISON COUNTY
Per curiam. ALCALA , J., filed a concurring opinion.
ORDER
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 murder and
sentenced to sixty years’ imprisonment. The Sixth Court of Appeals affirmed his conviction. Smith
v. State, No. 06-09-00140-CR (Tex. App. — Texarkana, Jan. 11, 2010) (not designated for
publication).
Applicant contends, among other things,1 that the State withheld favorable evidence from the
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This Court has considered Applicant’s other claims and finds them to be without merit.
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defense prior to trial by failing to disclose the criminal history of its primary witness, Marietta
Taylor. Applicant alleges that his trial counsel rendered ineffective assistance because trial counsel
failed to adequately investigate and discover the criminal history of witness Marietta Taylor.
Applicant also alleges that trial counsel failed to object to the introduction of extraneous offense and
bad act evidence and to the prosecutor’s repeated references to those extraneous matters during
closing arguments, and failed to request limiting instructions regarding extraneous offenses and bad
acts in the jury charge. Applicant alleges that trial counsel failed to recall State’s witness Adrian
Ward for cross-examination when Ward was removed from the courtroom immediately after his
direct testimony without providing an opportunity for cross-examination.
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 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). 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 and conclusions of law as to whether the State
timely provided the defense with the criminal history of its witness Marietta Taylor. If the State did
not disclose such evidence, the trial court shall make findings of fact and conclusions of law as to
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whether the evidence was material and favorable to the defense. The trial court shall also 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. 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 must
be requested by the trial court and shall be obtained from this Court.
Filed: April 12, 2017
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