Gilford, Coty Demond ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-73,752-02
EX PARTE COTY DEMOND GILFORD, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 945073-A IN THE 262ND DISTRICT COURT
FROM HARRIS COUNTY
Per curiam. ALCALA , J., filed a concurring opinion in which JOHNSON and
RICHARDSON , JJ., joined. YEARY , J., filed a concurring opinion in which KEASLER and
HERVEY , JJ., joined.
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 aggravated
robbery and sentenced to thirty years’ imprisonment. The Fourteenth Court of Appeals affirmed
conviction. Gilford v. State, No. 14-03-00506-CR (Tex. App. — Houston [14th Dist.], February 19,
2004) (not designated for publication).
2
Applicant contends, among other things,1 that trial counsel rendered ineffective assistance
because counsel failed to investigate and argue that Applicant’s arrest was illegal, and that the
statement that Applicant gave while in custody was thus inadmissible. Applicant alleges that trial
counsel failed to object on the basis of denial of confrontation when the State elicited information
provided by non-testifying witnesses through the testimony of investigating officers at trial.
Applicant also alleges that the complainant and other witnesses failed to identify Applicant in pre-
trial photo lineups as the robber, and gave descriptions of the robber that did not match Applicant.
Applicant alleges that trial counsel should have impeached the complainant’s in-court identification
with his prior inconsistent statements and inability to identify Applicant. Applicant also alleges that
trial counsel should have investigated and secured the testimony of the other witnesses who did not
identify Applicant as the robber.
The trial court entered an order designating issues in this case in 2007, and apparently
ordered Applicant’s trial counsel to provide an affidavit responding to Applicant’s allegations.
However, in 2016 the trial court entered findings of fact and conclusions of law, finding among other
things that after reviewing the record, the trial court was of the opinion that no affidavit from trial
counsel was necessary in order to address Applicant’s allegations. However, the habeas record does
not contain copies of the trial records that were reviewed by the trial court, and the trial court’s
findings of fact do not address all of Applicant’s allegations.
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
1
This Court has considered Applicant’s other claims and finds them to be without merit.
3
(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
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 shall
be obtained from this Court.
Filed: June 29, 2016
Do not publish