Nixon, Tracy Jay ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-66,371-01

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EX PARTE TRACY JAY NIXON, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 70861-168-1 IN THE 168^TH DISTRICT COURT FROM EL PASO 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of indecency with a child and sentenced to ninety-nine years' imprisonment. The Eighth Court of Appeals affirmed his conviction. Nixon v. State, No. 08-94-00075-CR (Tex. App.-El Paso, delivered November 21, 1996, pet. ref'd).

Applicant contends that trial counsel rendered ineffective assistance because he failed to properly object when the State commented on Applicant's post-arrest silence and because he made an inflammatory argument to the jury during punishment.

The trial court entered findings of fact and conclusions of law and recommended denying relief. We believe, however, that the trial court's findings are not sufficient to resolve Applicant's claims. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 shall provide Applicant's trial counsel with the opportunity 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).

Applicant appears to be represented by counsel. If he is not and 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 additional findings of fact as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall specifically make findings of fact as to when, after being arrested, Applicant spoke to police officers, and whether Applicant had been Mirandized before speaking to the officers. Ex parte Heidelberg, No. AP-75,263 (Tex. Crim. App. Nov. 15, 2006). 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. 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: December 13, 2006

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