Opinion
Nos. WR-65,385-01, WR-65,385-02
Filed: October 25, 2006. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus, Cause Nos. 01CR0068 and 01CR0069 in the 10th Judicial District Court, from Galveston County.
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 aggravated sexual assault of a child and sentenced to 30 years' and 25 years' imprisonment. The First Court of Appeals affirmed his convictions. Casanova v. State, Nos. 01-01-00905-CR and 01-01-00906-CR (Tex.App.-Houston, December 19, 2002, pet. ref'd). Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to contact and call a potential defense witness, Grace Salinas, who would have testified that she never saw Applicant commit any act of abuse toward the complainant or any other child and that she was present many times while Applicant was babysitting the complainant. She would have provided information about Applicant's history, background, and good character. 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. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity 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). 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 counsel contacted the potential defense witness, and whether she was available and would have provided testimony that would have been of some benefit to the defense. See King v. State, 649 S.W.2d 42 (Tex.Crim.App. 1983). The court shall also 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 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 ninety (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 one hundred twenty (120) days of the date of this order. Any extensions of time shall be obtained from this Court.