DocketNumber： WR-79,392-01
Filed Date： 5/15/2013
Status： Precedential
Modified Date： 9/16/2015
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-79,392-01
EX PARTE BRADLEY DAUEL FITZGERALD, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. A-36,415 IN THE 70TH DISTRICT COURT
FROM ECTOR COUNTY
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 sexual assault of a child and sentenced to seventy-five years’ imprisonment. The Eleventh Court of Appeals affirmed his conviction. Fitzgerald v. State, No. 11-10-00048-CR (Tex. App. – Eastland, February 29, 2012, pet. ref’d).
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to adequately consult or communicate with Applicant prior to trial, failed to conduct an independent investigation, failed to secure favorable character witnesses, failed to introduce favorable evidence including a letter and affidavit of non-prosecution from the complainant’s mother, failed to impeach the State’s witnesses with prior inconsistent statements and pending criminal charges, failed to object to the redaction of a DVD by the State, failed to make adequate objections when the complainant’s mother testified as to the truthfulness of the complainant, and failed to preserve error when the prosecutor mis-characterized evidence during opening statements and closing arguments.
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 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). 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: May 15, 2013
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