Opinion
NO. WR-44,581-02
01-24-2018
EX PARTE NICKY CHARUNE AGNEW, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 007-1194-11-A IN THE 7TH DISTRICT COURT FROM SMITH COUNTY
Per curiam. 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 the offense of possession of a controlled substance and sentenced to imprisonment for life.
Applicant complains that: appellate counsel was ineffective regarding a motion for rehearing; trial counsel was ineffective for abandoning a meritorious suppression argument; trial counsel was ineffective for failing to object to testimony from a DEA agent; trial counsel was ineffective for failing to object to testimony regarding cocaine addicts; and trial counsel was ineffective for failing to object to closing argument. Strickland v. Washington, 466 U.S. 668, 687 (1984). The trial court has entered findings regarding these claims, but as discussed below, this Court requires further factual development of the record. Applicant also complains about the trial court's ruling regarding a pretrial Batson challenge he made, and he argues why the claim is cognizable in a habeas application. Batson v. Kentucky, 476 U.S. 79, 85 (1986). There are no findings on this claim.
Regarding Applicant's claim that counsel abandoned a meritorious suppression argument, there are no findings resolving whether the facts supported a traffic stop based on the trooper's stated reason of driving-in-the-left-lane-without-passing or the State's alternative theory of slow-driving-in-the-left-lane. Indeed, habeas counsel suggests that the facts do not support the slow-driving explanation.
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 resolve the factual issues. 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 not represented by counsel and 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 enter findings of fact regarding whether the trooper lawfully stopped Applicant for a traffic violation and whether the seized evidence from the traffic stop should have been suppressed. The trial court shall also enter findings regarding Applicant's Batson claim. The trial court may 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 must be requested by the trial court and shall be obtained from this Court. Filed: January 24, 2018
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