Opinion
NO. WR-91,905-01
11-11-2020
EX PARTE CHARDEH HAWKINS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2016CR4911-W1 IN THE 144TH DISTRICT COURT FROM BEXAR COUNTY
Per curiam. ORDER
Applicant was convicted in a bench trial of one count of aggravated robbery and one count of aggravated assault and sentenced to fifteen years' imprisonment for each count, to run concurrently. The Fourth Court of Appeals affirmed his conviction. Hawkins v. State, No 04-17-00510-CR (Tex. App. — San Antonio July 5, 2018) (not designated for publication). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.
Applicant contends that trial counsel was ineffective for a multitude of reasons. The trial court ordered trial counsel to respond, and trial counsel filed an affidavit refuting most of Applicant's claims. However, one claim raised by Applicant is that both trial counsel and appellate counsel were ineffective for failing to raise the issue of double jeopardy because Applicant was convicted of both aggravated robbery by causing bodily injury and aggravated assault by causing bodily injury to the same complainant during the same incident. The trial court did not specifically order trial counsel to respond to this allegation, and trial counsel's affidavit does not address this claim.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX. CODE CRIM. PROC. art. 11.07, § 3(d). The trial court shall order trial counsel and appellate counsel to respond to Applicant's claim. In developing the record, the trial court may use any means set out in Article 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 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 findings of fact and conclusions of law as to whether trial counsel's performance in failing to challenge Applicant's convictions on both counts as being in violation of the prohibition on double jeopardy was deficient and whether Applicant was prejudiced. The trial court shall also make findings of fact and conclusions of law as to whether appellate counsel's performance in failing to raise this issue on direct appeal was deficient and whether Applicant was prejudiced. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX. R. APP. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. Filed: November 11, 2020
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