Opinion
NO. WR-87,774-01
03-21-2018
EX PARTE THOMAS C. ANDERSON-HATFIELD, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 12-1-26318-A COUNT ONE IN THE 24TH DISTRICT COURT FROM VICTORIA 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 aggravated sexual assault and sentenced to 50 years' imprisonment. The Thirteenth Court of Appeals affirmed his conviction. Anderson-Hatfield v. State, No. 13-12-00500-CR (Tex. App.—Corpus Christi-Edinburg Jul. 18, 2013) (not designated for publication).
Applicant contends that his trial counsel rendered ineffective assistance because he did not discover and present expert testimony disputing the State's claim that the sexual organ of the child was penetrated. The trial court's findings include determinations that there is no evidence that Applicant's proposed expert witness was available to testify at trial and that the expert trial counsel did consult with was competent to advise the defense in this case. These findings are not entirely supported by the record. The expert's affidavit attached to the writ application says that had he been called as an expert to testify for the defense, he would have testified to the statements presented in his affidavit. Additionally, the brief report from the defense expert consulted before trial does not address the issue of penetration, which is what Applicant claims should have been contested.
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 undertake further fact finding and make supplemental findings of fact. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d).
It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if Applicant is represented by counsel, and if not, 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 supplemental 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 make specific findings addressing the credibility of Applicant's expert's claim that he would have testified at trial, if asked. The trial court shall also make specific findings addressing Applicant's claim that he was harmed by counsel's failure to present expert testimony regarding the issue of penetration in this case. 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 must be requested by the trial court and shall be obtained from this Court. Filed: March 21, 2018
Do not publish