Opinion
WR-21,875-04
10-23-2024
EX PARTE FREDERICK LORENZO BROOKS, Applicant
DO NOT PUBLISH
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 23185-B (1) IN THE 104TH DISTRICT COURT FROM TAYLOR COUNTY
ORDER
PER CURIAM.
Applicant was convicted of tampering with evidence and possession of a controlled substance and sentenced to 25 years' imprisonment and 2 years' imprisonment, respectively. The Eleventh Court of Appeals affirmed his conviction. Brooks v. State, No. 11-22-00339-CR (Tex. App. - Eastland, March 21, 2024, pet. ref'd). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends that trial counsel was ineffective because counsel failed to provide Applicant with notice of a pretrial setting, causing Applicant to fail to appear and an arrest warrant to issue. Applicant also asserts that counsel's lack of notice caused him to lose the opportunity to accept the State's plea offer. He states that he would have accepted the State's offer if he had been given the opportunity. The record before this Court indicates that the date of the setting at issue was also the deadline for the parties to reach a plea bargain. Counsel acknowledged before trial that he had not given Applicant notice of this setting.
Applicant further contends that defense counsel failed to investigate and prepare for trial. Specifically, Applicant avers that counsel did not independently review the evidence of the incident and present evidence that was inconsistent with the State's evidence. He contends that counsel failed to obtain records of a testifying officer's pattern of wrongdoing in searches and arrests. Applicant also states that defense counsel ignored Applicant's factual assertions about the events in question and failed to contact the witnesses Applicant identified. The record before this Court reflects that trial counsel acknowledged before trial that he had not adequately conferred with Applicant or prepared for trial.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant's claim. In developing the record, the trial court may use any means set out in Article 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 wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant was prejudiced. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.