Barr, Todd William ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-24,262-03
EX PARTE TODD WILLIAM BARR, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 27680-A(1) IN THE 42ND DISTRICT COURT
FROM TAYLOR COUNTY
Per curiam.
ORDER
Applicant was convicted of arson and sentenced to forty years’ imprisonment. The Eleventh
Court of Appeals affirmed his conviction. Barr v. State, No. 11-19-00040-CR (Tex. App. —
Eastland Feb. 26, 2021) (not designated for publication). Applicant filed this application for a writ
of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court.1 See
TEX . CODE CRIM . PROC. art. 11.07.
1
It appears that at least one page of Applicant’s memorandum is missing from the record
forwarded to this Court, and the trial court’s findings of fact and conclusions of law appear to be
incomplete. It is not clear whether the memorandum page was missing from the record filed in
the district court and whether the trial court’s findings of fact were incomplete when they were
entered, or whether these items were omitted from the record forwarded to this Court.
2
Applicant contends, among other things,2 that he received ineffective assistance of both trial
and appellate counsel. Applicant alleges that trial counsel was ineffective because counsel allowed
the State to introduce a video recording from a gas station without objection, although the State
indicated that the authenticating or sponsoring witness was not available on the day of trial.
Applicant also alleges that although trial counsel was aware of the existence of an alibi witness more
than a year before trial, counsel failed to contact that witness or prepare her to testify until three days
before trial.
Applicant alleges that appellate counsel failed to adequately raise the issue that the prosecutor
made improper comments about the truthfulness of a State’s witness on direct appeal, despite the
issue having been preserved by contemporaneous objections.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate
forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial
counsel and appellate counsel to respond to Applicant’s claims. In developing the record, the trial
court may use any means set out in Article 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 wants to be represented
by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX . CODE
CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify
this Court of counsel’s name.
The trial court shall first ensure that the habeas record is complete, insofar as it contains
everything filed by Applicant in that court. The trial court shall make findings of fact and
2
This Court has reviewed Applicant’s other claims and finds them to be without merit.
3
conclusions of law as to whether trial counsel’s performance was deficient and Applicant was
prejudiced. The trial court shall also make findings of fact and conclusions of law as to whether
appellate counsel’s performance was deficient, and whether Applicant was prejudiced. The trial
court may make any other findings and conclusions that it deems appropriate in response to
Applicant’s claims.
The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: October 20, 2021
Do not publish