Opinion
NO. WR-87,828-02
03-21-2018
EX PARTE OTTO CAULEY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. ND 6336-A IN THE DISTRICT COURT 1A FROM NEWTON 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 aggravated robbery and sentenced to forty years' imprisonment. The Ninth Court of Appeals affirmed his conviction. Cauley v. State, No. 09-11-00034-CR (Tex. App. — Beaumont, April 25, 2012) (not designated for publication).
Applicant contends, among other thing, that his trial counsel rendered ineffective assistance for a number of reasons. Applicant alleges that trial counsel failed to object to the in-court identifications of Applicant by two bank tellers or to seek suppression of the identifications on the basis that they resulted from an impermissibly suggestive pre-trial identification procedure. Applicant also alleges that trial counsel failed to object to or challenge a venire member who had served as the foreperson of the grand jury that returned the indictment in this case, who did not disclose this fact when the venire was asked whether anyone had served on any type of jury previously, and who was a close friend of the Sheriff who was a primary witness for the State in this case. Applicant alleges that "the Rule" was invoked and applied specifically to that Sheriff, but that he was present in the courtroom during the testimony of other witnesses, without objection from trial counsel. Applicant alleges that trial counsel failed to object on the basis of the Confrontation Clause when the State offered hearsay in the form of police reports from two officers who did not testify at trial. Applicant alleges that trial counsel failed to adequately investigate and cross-examine witnesses regarding the chain of custody of video evidence. Applicant alleges that trial counsel failed to file a motion to suppress Applicant's statements to the Sheriff and to his parole officer on the basis that Applicant was not provided with Miranda warnings, and on the basis that Applicant was physically abused and threatened into giving his statement to the Sheriff. Applicant alleges that he provided trial counsel with the name and contact information of an alibi witness, Bernadette Robinson, but that trial counsel failed to interview or call Robinson. Applicant alleges that trial counsel failed to investigate and challenge the arrest warrant on the basis that it was stale or expired before it was executed. Applicant alleges that he wanted to testify on his own behalf, but that trial counsel advised him that it was counsel's decision to make. Applicant alleges that the cumulative effect of all of trial counsel's errors denied him a fair trial.
This Court has considered Applicant's other claims and finds them to be without merit.
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 claims 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 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.
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: March 21, 2018
Do not publish