DocketNumber： WR-76,709-01
Filed Date： 1/11/2012
Status： Precedential
Modified Date： 9/16/2015
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 was convicted of attempted capital murder and aggravated robbery and was sentenced to two concurrent terms of thirty years' imprisonment. He did not appeal his convictions.
Applicant contends the two convictions constitute double jeopardy, and he complains his trial counsel was ineffective for advising him to plead to a lesser included offense barred by double jeopardy. He also complains there is no evidence showing a robbery ever occurred. The record forwarded to this Court had no answer from the State, affidavit from trial counsel, or findings from the trial court.
Applicant's claim regarding no evidence of robbery is without merit. Applicant, however, has alleged facts that, if true, might entitle him to relief regarding his double jeopardy allegations. Littrell v. State, 271 S.W.3d 273 (Tex. Crim. App. 2008); Ex parte Diaz, 959 S.W.2d 213, 214 n. 2 (Tex. Crim. App. 1998); 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, 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 obtain an affidavit from Applicant's trial counsel responding to Applicant's claim of ineffective assistance and explaining any applicable trial strategy.
In addition to obtaining this affidavit, the trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) to resolve factual issues. 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 him 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 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, 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: January 11, 2012
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