No. WR-69,275-01
Filed: April 2, 2008. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. C-1-007000-0794248-A in the No. 1 District Court from Tarrant 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 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 48 years' imprisonment. The Second Court of Appeals affirmed his conviction. Biffel v. State, No. 2-01-478-CR (Tex.App.-Fort Worth, June 26, 2003, pet ref'd). Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to investigate and question Jerry Biffel concerning whether he had been pressured by prosecutors into making false statements implicating Applicant, especially a statement that Applicant had admitted to him that he had something to do with the victim's death. Applicant asserts that he had told counsel that Jerry Biffel was making false statements because the prosecutors had threatened to prosecute him for murder if he did not. Applicant also asserts that the State should have disclosed to counsel that Jerry Biffel was making false statements and testifying as the result of a threat of prosecution. Counsel's first affidavit did not address this particular claim. However, Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex.Crim.App. 2000). 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 provide Applicant's trial counsel with another opportunity to respond to this claim of ineffective assistance of counsel. The trial court shall also provide the State with another opportunity to discuss any information helpful to resolving the question of whether Jerry Biffel's testimony was false and whether it was the result of any threat of prosecution. 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 make findings of fact as to whether the performance of Applicant's trial attorney 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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. Any extensions of time shall be obtained from this Court.