Opinion
No. WR-63,194-01
April 5, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, from Fannin County, in Cause No. 19150; in the Sixth District Court.
ORDER
This is an application for a writ of habeas corpus that was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offenses of burglary of a habitation and aggravated assault. He was sentenced to confinement for fifty years on each count. Applicant's conviction was affirmed on appeal. Barnett v. State, No. 06-00-00107-CR (Tex.App.-Texarkana, delivered August 3, 2001, no pet.). Applicant contends that trial counsel was ineffective for denying Applicant the right to testify and for not calling alibi witnesses to testify. The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from trial counsel, or it may order a hearing. In the appropriate case the trial court may also rely on its personal recollection. If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court shall then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing. Following receipt of additional information, the trial court shall make findings of fact as to whether Applicant expressed a desire to testify at trial and whether counsel denied him that right. If the trial court finds that counsel denied Applicant the right to testify, the trial court shall then make findings of fact as to whether counsel was ineffective. The trial court shall also make findings of fact as to whether the following alibi witnesses were available to testify and whether counsel called them to testify: Keith Armstrong, Stacie Smith, Jessica Smith, Joe David Jones, Joseph Tuminski, Greg Deloach, Lin Hall, Dennis Wasson, and Betty DePriest Comegys. If the trial court finds that counsel did not call them to testify, the trial court shall make findings of fact as to whether counsel was ineffective. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus. Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.Crim.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date 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 returned to this Court within 120 days of the date of this order. IT IS SO ORDERED.
In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.
Any extensions of this time period shall be obtained from this Court.