Opinion
NO. WR-85,650-01
09-21-2016
EX PARTE JEREMY PAUL THORNBURG, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 10123 IN THE 90TH DISTRICT COURT FROM YOUNG COUNTY
Per curiam. ALCALA, J., filed a concurring opinion. 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 murder and sentenced to life imprisonment. The Second Court of Appeals affirmed his conviction. Thornburg v. State, No. 02-14-00453-CR (Tex. App. — Fort Worth, Aug. 6, 2015) (not designated for publication).
Applicant contends, among other things, that his trial counsel rendered ineffective assistance because counsel did not object to a Texas Ranger testifying as to his theory of the case, did not challenge two jurors who stated that they thought that Applicant was "probably slightly guilty" based on the fact that he had been arrested, charged and was on trial, failed to request an accomplice-witness instruction in the jury charge, and failed to object when the State elicited testimony during the punishment phase from members of the victim's family regarding what sentence the jury should assess.
This Court has considered Applicant's other claims and finds them to be without merit.
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 shall first supplement the habeas record with a copy of the trial record including the voir dire, the jury charge, and any other relevant documents. The trial court shall then make 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 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 shall be obtained from this Court. Filed: September 21, 2016
Do not publish