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).
In his habeas application, Applicant raised many claims, and this Court remanded to the trial
court several claims that alleged ineffective assistance of counsel. Strickland v. Washington, 466
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U.S. 668 (1984). On remand, the trial court supplemented the habeas record with affidavits and
findings and recommends that this Court deny habeas relief. This Court is unconvinced that the
record supports the findings and recommendation. Under the facts of Applicant’s case, it appears that
the evidence Applicant presents in habeas would have supported counsel’s strategy to “emphasize[]
the inconsistencies in the stories told by the State’s witnesses, the long passage of time before an
outcry was made by the alleged victim, and the motivations of the State’s witnesses to make a false
accusation of sexual abuse,” but counsel did not discover and present it.
Counsel says, “I do not have any memory of [Applicant] alerting me to the existence of any
records that would have refuted the State’s case.” Counsel does not indicate why he would not have
obtained the records if told of them, other than to say that they perhaps may not have been relevant,
and counsel does not indicate whether he asked Applicant his whereabouts during the approximate
4½ month period alleged in the indictment’s on-or-about range. 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 conduct a live evidentiary
hearing regarding Applicant’s claims that trial counsel was ineffective in his investigation of the case
and in his representation of Applicant at trial. Before doing so, the trial court shall determine whether
Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court
shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If
counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s
name.
The trial court shall make additional findings of fact and conclusions of law regarding
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Applicant’s ineffective assistance of trial counsel claims, including findings regarding whether trial
counsel should have discovered the evidence Applicant presents in habeas and whether counsel
should have presented this evidence at trial. Strickland, 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
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: January 27, 2021
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