Opinion
NO. WR-86,925-01
08-23-2017
EX PARTE ISAIAH PAUL DELAO, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2004-1060-C2A IN THE 54TH DISTRICT COURT FROM MCLENNAN COUNTY Per cur i am. 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 capital murder and sentenced to life imprisonment. Applicant's conviction was affirmed on appeal. Delao v. State, 235 S.W.3d 235 (Tex. Crim. App. 2007).
Applicant contends, among other things, that his trial counsel rendered ineffective assistance because did not object to inclusion of an incorrect voluntariness instruction in the jury charge.
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 shall order trial counsel 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 has made findings concluding that consideration of Applicant's claims is barred by laches. The current record contains no evidence or specific factual allegations to support that finding. The trial court shall make supplemental findings of fact and conclusions of law as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court may make supplemental findings addressing the State's laches claim, if appropriate. 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. 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: August 23, 2017
Do not publish
Delao v. State, 235 S.W.3d 235, 237 n.2 (Tex. Crim. App. 2007).