Opinion
No. 12-06-00179-CR
Opinion delivered November 1, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law Houston County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
MEMORANDUM OPINION
Colin McAndrew was convicted by a jury of class A misdemeanor assault, and punishment was assessed at one year in jail and a $4,000.00 fine, both probated for two years. His conviction was affirmed in an unpublished opinion issued on March 23, 2005. McAndrew v. State, No. 12-03-00297-CR, 2005 WL 674195 (Tex.App.-Tyler Mar. 23, 2005, pet. ref'd) (not designated for publication). Appellant filed an application for a writ of habeas corpus on May 8, 2006, together with a motion for an evidentiary hearing on the application. The sole issue for habeas relief was a claim that Appellant was denied the effective assistance of counsel at trial. On May 12, 2006, the trial court denied the writ without a hearing. The trial court did not enter findings of fact or conclusions of law. The trial court's order listed two bases for the denial: (1) the application was frivolous pursuant to Texas Code of Criminal Procedure article 11.072, section 7, and (2) the relief requested could have been obtained through his appeal. We reverse and remand the cause for a hearing on the application for writ of habeas corpus.
WRIT OF HABEAS CORPUS
In his first issue, Appellant asserts the trial court erred in denying his habeas application without conducting an evidentiary hearing or otherwise allowing him to develop the habeas record. He argues that the application was not frivolous because he asserted claims which, if true, would merit relief and he could not obtain the requested relief on direct appeal because the trial record did not contain counsel's explanations for his conduct. Pertinent Law Article 11.072 of the Texas Code of Criminal Procedure prescribes the procedure for an application for a writ of habeas corpus where an applicant seeks relief from an order or a judgment of conviction ordering community supervision. TEX. CODE CRIM. PROC. ANN. art. 11.072 (Vernon Supp. 2006). A trial court's decision whether to grant an application for habeas corpus is reviewed under an abuse of discretion standard. Pipkin v. State, 935 S.W.2d 213, 215 (Tex.App.-Amarillo 1996, pet. ref'd). An abuse of discretion occurs when a trial court acts without reference to any guiding principles or rules. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990) (op. on reh'g). The court of criminal appeals has stated that a writ of habeas corpus is a proper method to raise a claim of ineffective assistance of counsel. Rylander v. State, 101 S.W.3d 107, 111 n. 1 (Tex.Crim.App. 2003). As the court wrote in Ex parte Torres,[g]enerally, a claim which was previously raised and rejected on direct appeal is not cognizable on habeas corpus. [citations omitted] However, this doctrine should not be applied where direct appeal cannot be expected to provide an adequate record to evaluate the claim in question, and the claim might be substantiated through additional evidence gathering in a habeas corpus proceeding. In most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim. [citation omitted]Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App. 1997). When an applicant alleges facts that, if true, might entitle him to habeas relief, the appellate court remands the matter to the trial court for resolution of the factual issues presented in accordance with the Code of Criminal Procedure. Ex parte Patterson, 993 S.W.2d 114, 115 (Tex.Crim.App. 1999). The purpose of the hearing on the writ of habeas corpus is to provide the applicant the opportunity to develop testimony and other evidence to support the allegations contained in the writ. Ex parte Nailor, 149 S.W.3d 125, 130-31 (Tex.Crim.App. 2004). This court cannot hear evidence; rather, the trial court is the appropriate forum to develop such a record. Ex parte Rodriguez, No. AP-75,281, 2006 Tex. Crim. App. LEXIS 587, at *2 (Tex.Crim.App. Mar. 29, 2006). Application This court's opinion in the direct appeal of this case was attached as Exhibit One to Appellant's application for writ of habeas corpus. In overruling Appellant's claim of ineffective assistance of counsel, we noted that "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McAndrew, 2005 WL 674195, at *5 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)). This court further noted that, in the absence of testimony or an affidavit from trial counsel regarding trial counsel's reasons for the actions of which Appellant complains, an appellate court will not speculate as to the reasons. Therefore, this court overruled the ineffective assistance of counsel issue on direct appeal. In his application, Appellant asserted that his counsel's performance was deficient in that he failed to object to certain testimony, impeach one witness's testimony with her prior inconsistent statement, call a witness who could impeach the complainant, and object to the prosecutor's prejudicial jury argument. Appellant also contends that his counsel elicited damaging testimony. Appellant's application for writ of habeas corpus alleged facts which, if true, might entitle him to relief. See Ex parte Patterson, 993 S.W.2d at 115. Further, Appellant specifically requested a hearing to develop testimony to substantiate his claims of ineffective assistance of counsel. In the face of allegations, which, if true, might entitle Appellant to relief, the trial court denied Appellant the opportunity to have a hearing to develop the testimony of his trial counsel to explain his actions at trial. The trial court's denial of Appellant's writ of habeas corpus and a hearing on his writ was, in light of these allegations and Appellant's request for a hearing, an abuse of discretion. We sustain Appellant's first issue. We need not reach Appellant's second issue. See TEX. R. APP. P. 47.1.