Opinion
No. WR-72,348-01
Filed: August 19, 2009. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus Cause No. 2005cr2907-W1 In The 186th Judicial District, appeal 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 ninety-nine years' imprisonment. The Fourth Court of Appeals affirmed his conviction. Kearse v. State, No. 04-06-00421-CR (Tex. App.-San Antonio, December 19, 2007, pet. ref'd). Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to object to the introduction of the statements of an absent witness to a police officer as a violation of the Confrontation Clause. Counsel objected to the introduction of the testimony in question as hearsay, and the trial court overruled the objections, allowing the testimony in under the excited utterance exception to the hearsay rule. However, there is nothing in the record to indicate whether counsel made any objection under the Confrontation Clause, and if not, why not. See Crawford v. Washington, 541 U.S. 36, 69 (2004). Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 provide Applicant's trial counsel with the opportunity 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 shall make findings of fact as to whether trial counsel objected to the introduction of Melanie Villarreal's statements through the testimony of Officer Stanush on the basis that such testimony violated Applicant's right to confrontation under Crawford, and if not, why not. The trial court shall make findings as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.