Weisner, Sean

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-81,958-01 & -02
EX PARTE SEAN WEISNER, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. F10-586260H & F10-58692-H
IN THE CRIMINAL DISTRICT COURT NO. 1 FROM DALLAS 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 these applications for writs of habeas
corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was
convicted of family violence aggravated assault causing serious bodily injury using a deadly
weapon and aggravated assault with a deadly weapon and was sentenced to seventy years’
and ten years’ imprisonment, respectively. The Fifth Court of Appeals affirmed both
convictions in Weisner v. State, Nos. 05-11-00685-CR & 05-11-00686-CR (Tex.
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App.–Dallas Feb. 22. 2013, pet. ref’d).
Applicant alleges that he has a history of mental health issues, including paranoid
schizophrenia, psychotic moods, major depression, and auditory hallucinations. Applicant
alleges that he told trial counsel of his mental history. Applicant asserts that he does not
remember committing the offenses and wished to present the defense of insanity at trial.
Instead, Applicant complains that trial counsel failed to timely raise the defense of insanity
and the motion was dismissed by the trial court as untimely filed. See T EX. C ODE C RIM.
P ROC. art. 36c.051. Applicant alleges that without his only available defense, he was forced
to plead guilty.
To prevail on an affirmative defense of insanity, a defendant must establish by a
preponderance of the evidence that he was insane at the time of the offense. T EX. C ODE
C RIM. P ROC. art. 46C.153. Insane means that the defendant, at the time of the offense, and
as a result of severe mental disease or defect, did not know that his conduct was wrong. T EX.
P ENAL C ODE § 8.01.
Applicant has alleged facts that, if true, might entitle him to relief.1 Strickland v.
Washington, 466 U.S. 668 (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,
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The trial court concluded that these applications should be dismissed because Applicant’s
application and memorandum exceed the page limit requirements. TRAP 73.1(d). The trial court is
incorrect. In both applications, Applicant filed a 15 page, handwritten, memorandum with exhibits. A
non-computer generated memorandum, like Applicant’s, is in compliance with the new rule, so long as
the memorandum does not exceed 50 pages. Applicant’s 15 page memorandum is well within compliance
limits.
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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 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).
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. T EX. C ODE C RIM. P ROC. art. 26.04.
The trial court shall make findings of fact and conclusions of law as to whether
counsel’s conduct was deficient and Applicant was prejudiced. The trial court shall
determine whether there is a reasonable probability that, had counsel presented an insanity
defense, the jury would have found Applicant not guilty by reason of insanity. The trial court
shall also determine whether counsel was deficient by not timely raising insanity as a
defense. The trial court shall also make any other findings and conclusions that it deems
relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief.
These applications 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 trial counsel’s affidavit and
the trial court’s supplemental findings of fact, shall be returned to this Court within 120 days
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of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: October 1, 2014
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