Smith, Justin Wade

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-90,298-01
EX PARTE JUSTIN WADE SMITH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 10-2531-CR-A IN THE SECOND 25TH DISTRICT COURT
FROM GUADALUPE 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 continuous sexual
abuse of a child and sentenced to forty years’ imprisonment without the possibility of parole. The
Fourth Court of Appeals affirmed the conviction. Smith v. State, No. 04-12-00213-CR, 397 S.W.3d
765 (Tex. App.—San Antonio 2013).
Applicant raises many claims in his habeas application. Regarding some of his claims, he has
alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984);
Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996); Ex parte Patterson, 993 S.W.2d 114
(Tex. Crim. App. 1999).
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Applicant alleges that he is actually innocent of the second aggravated sexual assault
underlying his conviction for continuous sexual abuse of a child. Ex parte Elizondo, supra. He
complains that he told his trial counsel that there were records showing that he was traveling in his
semi-truck on the date the victim alleged the second incident occurred (i.e., trucking logs, a
California traffic citation, and a California parking citation) but that counsel failed to investigate to
obtain these records and present them to the jury. Strickland, supra. Applicant provides records in
support. According to the direct appeal opinion, “[T]here was some confusion as to the date of the
second incident of abuse. [The victim] indicated she had some trouble recalling events and her
testimony suggests two different time periods.” Smith, supra, at 769. Trial counsel has not
responded, the State did not provide an answer, and there are no findings from the trial court.
Applicant complains that trial counsel failed to object to the State’s leading of witnesses
throughout trial, for vouching for the victim’s credibility at closing, for telling the jury at closing that
other witnesses were not telling the truth, and for telling the jury at closing that it should have
watched a video that was not admitted into evidence. Strickland, supra. Trial counsel has not
responded, the State did not provide an answer, and there are no findings from the trial court.
Applicant complains that trial counsel failed to request a lesser-included instruction for
indecency with a child by contact. Strickland, supra. Trial counsel has not responded, the State did
not provide an answer, and there are no findings from the trial court.
Applicant complains that trial counsel failed to object to testimony from witness Moreno,
who he claims “basically alleged that Applicant was acting inappropriately to the complainant,” but
there was, according to Applicant, no notice of the alleged extraneous act, and it was not supported
by any other evidence at trial. According to the direct appeal opinion: “[The witness] testified at trial
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that she witnessed [the victim] appearing very uncomfortable around [Applicant] on one occasion
when she was visiting [the victim] at [her] aunt’s house in April of 2009. [The witness] testified she
saw [Applicant] put a blanket over himself and [the victim] and that [the victim] appeared to be very
shaky and scared of [Applicant].” Smith, supra, at 772. Trial counsel has not responded, the State
did not provide an answer, and there are no findings from the trial court.
Applicant complains that appellate counsel failed to seek a new trial and develop his habeas
claims for litigation at a hearing or on direct appeal. Appellate counsel has not responded, the State
did not provide an answer, and there are no findings from the trial court.
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 and appellate counsel to provide a response to the claims concerning
their representation of Applicant. To do so, 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 and conclusions of law regarding Applicant’s
ineffective assistance and actual innocence claims. Strickland, supra; Ex parte Elizondo, supra. 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 claims 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
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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 must
be requested by the trial court and shall be obtained from this Court.
Filed: October 23, 2019
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