Opinion
WR-68,994-01
05-15-2013
EX PARTE BRITTANY MARLOWE HOLBERG
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NO. W-11,492-C-1 IN THE 251ST JUDICIAL DISTRICT COURT
RANDALL COUNTY
Per Curiam .
ORDER
This is a post-conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
In March 1998, a jury convicted Applicant of the offense of capital murder. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Holberg v. State, 38 S.W.3d 137 (Tex. Crim. App. 2000).
Applicant presents thirty-five allegations in her application in which she challenges the validity of her conviction and resulting sentence. In her twenty-eighth allegation, she claims that she was denied effective assistance of counsel because trial counsel failed to conduct an adequate mitigation investigation and failed to provide critical background information to Dr. Patel, the defense mental health expert witness. See Strickland v. Washington, 466 U.S. 668 (1984). Applicant further alleges that trial counsel told John Schwartz that they intended to "throw the trial." We remand this application for the trial court to direct trial counsel Catherine Dodson and Candace Norris and defense investigators Jim Patterson and Kathy Garrison to respond to these claims in a live evidentiary hearing. Dodson and Norris shall explain their efforts to investigate and present mitigating evidence at the punishment phase of Applicant's trial. Patterson and Garrison shall also explain their involvement, if any, in the investigation of evidence pertaining to the mitigation special issue. Following the receipt of live, testimonial evidence, the trial court shall make any findings of fact and conclusions of law relevant and appropriate to the disposition of these claims. A supplemental transcript shall thereafter be returned to this Court.
This application for habeas corpus relief will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within 90 days of the date of this order. A supplemental transcript including the trial court's findings of fact and conclusions of law shall be returned to this Court within 120 days of the date of this order.
In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.
Any extensions of this time period should be obtained from this Court.
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IT IS SO ORDERED THIS THE 15TH DAY OF MAY, 2013. Do Not Publish