Opinion
NO. WR-76,716-02 NO. WR-76,716-03
09-27-2017
EX PARTE DENNIS DAVIS, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 13,297B & 13,297C IN THE 21ST DISTRICT COURT FROM BASTROP 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of assault and sentenced to twenty years' imprisonment. The Third Court of Appeals affirmed his conviction. Davis v. State, No. 03-09-00289-CR (Tex. App.—Austin Feb. 2, 2010) (not designated for publication).
Applicant contends, among other things, that trial counsel failed to object to extraneous misconduct evidence and ask for an instruction to disregard and a mistrial. On May 3, 2017, we remanded these applications for a response from trial counsel and findings of fact and conclusions of law from the trial court. On remand, counsel filed a sworn affidavit and explained that he made a strategic decision not to object to extraneous misconduct evidence. The trial court made findings and conclusions and noted that counsel did an excellent job representing Applicant, filed numerous motions and received rulings on these motions, made numerous objections, and zealously represented Applicant. The trial court concluded that counsel was not ineffective and recommended that we deny relief. We believe that the trial court's findings and conclusions are insufficient.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 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 him at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
The trial court shall make further findings and conclusions as to whether (1) counsel failed to object to inadmissible extraneous misconduct evidence; (2) if so, counsel's strategic decision not to object, as set out in his affidavit, was objectively reasonable; and (3) if not, Applicant was prejudiced. The trial court shall also make any other findings and conclusions that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
These applications 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: September 27, 2017
Do not publish