Guild, Lakim Mintrell

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,609-01
EX PARTE LAKIM MINTRELL GUILD, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 11-5-8612 A IN THE 24TH DISTRICT COURT
FROM JACKSON COUNTY
Per curiam.
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 assault with
family violence and sentenced to fifty years’ imprisonment. The Thirteenth Court of Appeals
affirmed his conviction. Guild v. State, No. 13-12-00175-CR (Tex. App. – Corpus Christi, August
20, 2013, no pet.).
Applicant contends, among other things,1 that his trial and appellate counsel rendered
ineffective assistance for various reasons. Applicant was represented by the same attorney at trial
1
This Court has reviewed Applicant’s other claims, and finds them to be without merit.
2
and on direct appeal. Applicant alleges that counsel was ineffective at trial because counsel did not
object when it was learned that the complainant’s aunt had served on the grand jury that returned the
indictment in this case. Applicant also alleges that counsel did not object to the State’s use of steak
knives that had not been seized from Applicant or otherwise connected to Applicant as
demonstrative exhibits. Applicant alleges that counsel did not advise him that a sixteen-year plea
offer which he had previously rejected had been extended until just before trial. Applicant also
alleges that counsel was ineffective for failing to rebut the State’s proffered race-neutral reason for
striking the only African-American venire member. He alleges that counsel should have moved for
a directed verdict or argued for self-defense when the complainant testified that she had hit
Applicant.
With respect to counsel’s performance on direct appeal, Applicant alleges that counsel
advised him in a letter eighteen days after the court of appeals had affirmed his conviction that
counsel needed to do some research to determine whether he would file a petition for discretionary
review on Applicant’s behalf. Applicant alleges that counsel advised him that if he were to file a pro
se petition for discretionary review, such a petition would nullify a petition filed by counsel, and the
court would only consider the pro se petition. Applicant alleges that he waited to hear from counsel,
but that counsel did not advise him whether or not he was filing a petition for discretionary review
on his behalf until it was too late to file a pro se petition. No petition for discretionary review was
filed in this case, and the court of appeals’ docket does not show that appellate counsel filed a letter
certifying compliance with Texas Rule of Appellate Procedure 48.4.
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
3
(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court
shall order counsel to respond to Applicant’s claims of ineffective assistance of trial and appellate
counsel.
Specifically, counsel shall state whether he learned that the complainant’s aunt had served
on the grand jury that returned the indictment in this case, and if so, when this information was
discovered and why he did not lodge an objection.
Counsel shall state whether the defense was provided with notice that the State intended to
seek an affirmative deadly weapon finding, as no deadly weapon was alleged in the indictment.
Counsel shall state whether he objected to the use of steak knives as demonstrative exhibits.
Counsel shall state whether he communicated any and all plea offers to Applicant, whether
Applicant accepted or rejected any such offers, and whether any offers were extended until just
before trial.
Counsel shall state why he did not try to rebut the State’s proffered race-neutral reason for
striking the only African-American venire member, which appears to have been based solely on the
venire member’s not-uncommon last name.
Counsel shall state whether self-defense was ever a theory explored or considered as a
defense in this case, and whether the complainant testified that she had hit Applicant, thereby raising
the possibility of self-defense.
Finally, counsel shall state whether he timely advised Applicant that his conviction had been
affirmed on direct appeal, and of his right to file a pro se petition for discretionary review. Counsel
shall state whether he advised Applicant to wait until he had researched the possibility of filing a
petition for discretionary review on Applicant’s behalf, and if so, whether he advised Applicant that
he did not intend to file such a petition, and when.
4
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 and appellate counsel was deficient and, if so, whether counsel’s
deficient performance prejudiced Applicant. The trial court shall also make findings as to whether
Applicant was denied his opportunity to petition this Court for discretionary review due to the
deficient advice of counsel. 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: January 28, 2015
Do not publish