Opinion
NO. WR-85,296-01 NO. WR-85,296-02
10-05-2016
EX PARTE BRYAN MICHAEL BAUM, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 2-12-213-A & 2-12-214-A IN THE 382ND DISTRICT COURT FROM ROCKWALL 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 these applications for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of retaliation and harassment of a public servant and was sentenced to twenty years' imprisonment in each count, to run concurrently. The Fifth Court of Appeals affirmed his convictions. Baum v. State, Nos. 05-12-01455-CR & 05-12-01456-CR (Tex. App.—Dallas Aug. 20, 2014)(not designated for publication).
Applicant contends, among other things, that his trial counsel rendered ineffective assistance because counsel: (1) failed to request a jury instruction on no mens rea or no voluntary act; (2) failed to introduce medical records to verify that Applicant is a Type-2 diabetic who injects insulin at every meal, and was suffering from insulin shock on the night of the offense; (3) failed to secure the expert testimony from a doctor who could have verified that Applicant is diabetic and his behavior on the night of the offense was caused by insulin shock; (4) failed to object and move for a mistrial after the State used false evidence; (5) failed to object to the self-incriminating statement in the jail booking questionnaire, made before Miranda warnings; (6) failed to object and move for a mistrial when the State failed to preserve evidence potentially useful for the defense; (7) failed to object to a violation of "The Rule;" (8) failed to object to the prosecutor's statement during sentencing that Applicant is "unrehabilitatable;" (9) failed to object to the trial judge's comment on the likelihood of Applicant making parole; (10) failed to admit Nurse Williams' "progress note" for impeachment purposes; and, (11) failed to present the Suicide Watch Sheet to show the jury the "adversarial setting that surrounded the questionnaire."
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).
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 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.
These applications 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: October 5, 2016
Do not publish