Opinion
No. WR-72,683-01
Delivered: October 21, 2009. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. 2004CR2488-W1, in the 144th Judicial District Court, from Bexar 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 murder and sentenced to thirty-five years' imprisonment. The Fourth Court of Appeals affirmed his conviction. Benitez v. State, No. 04-05-00196-CR (Tex. App.-San Antonio, May 3, 2006, pet. ref'd). Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because he failed to introduce a tape of the 9-1-1 call made just after the offense into evidence, failed to make an offer of proof with regard to the tape, failed to investigate the background of the State's main witness, failed to interview the witness' wife, and failed to present exculpatory evidence at trial. Applicant also alleges that the trial judge behaved in a way that evidenced a bias against the defense, resulting in a denial of due process. The trial court has entered detailed findings of fact and conclusions of law, based in part on affidavits and the record. However, the trial court also bases its findings and conclusions on evidence, testimony, and argument presented at a habeas hearing, apparently conducted on October 31, 2008. No transcript of the habeas hearing is included in the record before this Court. The trial court shall cause a transcript of the habeas hearing to be prepared and submitted, and shall supplement the habeas record with a copy of such transcript. This application will be held in abeyance until the trial court has supplemented the record. A supplemental transcript containing the transcription of the court reporter's notes from any hearing or deposition 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.