Henderson, Joe Lee ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-70,074-01

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EX PARTE JOE LEE HENDERSON, JR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 15614-A IN THE 329TH DISTRICT COURT FROM WHARTON 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 burglary of habitation and sentenced to three (3) years' imprisonment. He did not appeal his conviction.

Applicant alleges that Dawn E. Allison, who assisted his attorney Richard Manske in representing him, labored under a conflict of interest because she worked for the District Attorney's Office at the same time as she represented him. He alleges that Allison came to visit him in county jail and consulted with him instead of Manske. He alleges that this conflict affected specific instances of co-counsel's performance as she failed to bring the fact that the police officer assigned to the case was related to the complainant to counsel's attention and failed to search for alibi witnesses and request a line-up, even though identity was an important issue in this case. Applicant also alleges that the prosecutor told him that there would be "overzealous" prosecution in this case as investigating police officer was related to the complainant. He asserts that the complained-of relationship was the sole reason why a line-up was not conducted and why other suspects were not interrogated. He also alleges that counsel's advise to plead guilty was objectively deficient because counsel based his recommendation on erroneous information provided by co-counsel and was not aware of the facts of this case. Further, he alleges that his guilty plea was involuntary because he felt like he had no choice but to plead guilty because of the aforementioned conflict of interest.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) in that it shall order counsel (and co-counsel, if applicable) to file an affidavit addressing: (1) whether Dawn Allison assisted in representing Applicant in this case; (2) whether counsel was aware that the investigating police officer was related to the complainant; (3) whether identity was an important issue in this case and, if so, why a line-up was not conducted; (4) whether counsel familiarized himself with the facts of the case; and, (5) whether counsel believes that Applicant freely, knowingly, and intelligently entered his guilty plea. The trial judge shall also order the Assistant District Attorney who prosecuted this case to file an affidavit addressing: (1) whether to he or she was aware that the investigating police officer was related to the complainant; (2) whether he or she told Applicant there would be "overzealous" prosecution in this case because of the police officer's relationship with the complainant; and, (3) whether identity was an important issue in this case, and, if so, why a line-up was not conducted and why other suspects were not interrogated. The trial judge shall also supplement the record with a copy of the trial judge's written admonishments, Applicant's judicial confession, any written waivers, and a transcription the court reporter's notes from the plea hearing. 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 in regard to Applicant's claim that his plea was involuntary. Specifically, the trial judge shall make findings of fact as to whether counsel believes Applicant freely, knowingly, and intelligently entered his guilty plea. The trial judge shall also make findings of fact with regards to Applicant's ineffective assistance of counsel claim. Specifically, the trial judge shall make findings of fact as to whether counsel labored under a conflict of interest because of Allison's alleged relationship with the District Attorney's Office. The trial judge shall also make findings of fact as to whether there was prosecutorial misconduct in this case because of the police officer's alleged relationship with the complainant. 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. Any extensions of time shall be obtained from this Court.

Filed: September 10, 2008

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