Opinion
No. WR-71,704-01
Filed: April 1, 2009. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. 21028-A in the 42nd Judicial District Court, appeal from Taylor County.
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of possession with intent to deliver a controlled substance and sentenced to ninety-nine years' imprisonment. The Eleventh Court of Appeals affirmed his conviction. Aitchison v. State, No. 11-03-00187-CR (Tex.App.-Eastland, January 31, 2005, pet. ref'd). Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to request a mistrial when it was learned that jurors had seen Applicant being escorted into or out of the courtroom in handcuffs and shackles, failed to file a pre-trial motion to suppress evidence of money that was seized from Applicant, failed to present available witnesses and evidence of the true source of that money, and for failing to preserve error by timely objecting to the introduction of the money at Applicant's trial. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (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 provide Applicant's trial counsel with the 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). 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 Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04. The trial court shall make findings of fact as to whether counsel objected or moved for a mistrial in a timely fashion when it was learned that the jurors had seen Applicant in handcuffs and shackles. The trial court shall also make findings as to whether counsel filed a pre-trial motion to suppress the money evidence, and if not why not. The trial court shall make findings as to why counsel did not present testimony from Applicant's mother and evidence of bank records to establish the source of the money, and why counsel did not object to the introduction of the money evidence until after the State had already presented testimony regarding the seizure of the money. The trial court shall make findings 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.