DocketNumber： WR-67,563-01
Filed Date： 3/5/2008
Status： Precedential
Modified Date： 9/15/2015
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to a jury and was convicted of evading arrest and sentenced to ten (10) years' imprisonment. He did not appeal his conviction.
Applicant contends that his trial counsel rendered ineffective assistance because counsel: (a) failed to subpoena witnesses requested by Applicant, stating there was not enough time; and (b) failed to investigate and present a booking video which would have confirmed Applicant's assertions and testimony that police officers had injured him by jabbing a gun into his ear and his side during the arrest.
Finding that Applicant had alleged facts that, if true, might entitle him to relief, this Court entered a remand order. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In compliance with the remand order, the trial court provided Applicant's trial counsel with an opportunity to respond to Applicant's claim of ineffective assistance of counsel. Tex. Code Crim. Proc. art. 11.07, § 3(d).
Counsel filed an affidavit responding to part of this Court's remand order. In his affidavit counsel explained why he did not move for a continuance or request warrants when an eyewitness who had been subpoenaed failed to appear. He also stated summarily that no reasonable request of Applicant was declined. However, he did not explain whether or why he failed to subpoena witnesses requested by Applicant. He also failed to explain whether or why he did not investigate and present a booking video that would have confirmed Applicant's testimony concerning his treatment upon arrest. Instead, counsel stated that Applicant did not request "a subpoena for any 'booking or video' tapes." This statement did not address counsel's professional obligation to make reasonable investigations and strategic decisions on behalf of his client.
Therefore additional facts are still needed. The trial court shall provide Applicant's trial counsel with another 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).
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 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 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: March 5, 2008
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