Opinion
NO. WR-88,173-01
06-06-2018
EX PARTE DARRYN BURGESS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2014CR0646-W1 IN THE 437TH DISTRICT COURT FROM BEXAR 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 assault on a public servant and sentenced to fifty years' imprisonment. The Fourth Court of Appeals affirmed his conviction. Burgess v. State, No. 04-16-00009-CR (Tex. App.—San Antonio Dec. 7, 2016) (not designated for publication).
Applicant contends, among other things, that trial and appellate counsel failed to argue that the deadly weapon finding in his case was improper. After we received his application, Applicant filed in this Court a motion for leave to file a supplemental ground.
Applicant's motion is granted. If he files a supplemental ground, he shall file it in the county of conviction and on the prescribed 11.07 form, and the District Clerk shall immediately forward his supplemental ground to this Court.
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 may order 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 him at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
The trial court shall make further findings of fact and conclusions of law as to whether the State provided adequate notice before trial of its intent to seek a deadly weapon finding, the trial court erred in entering a deadly weapon finding based on inadequate notice, and counsel was ineffective for not raising this. 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: June 6, 2018
Do not publish