Opinion
NO. WR-87,828-02
11-14-2018
EX PARTE OTTO CAULEY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. ND 6336-A IN THE 1-A JUDICIAL DISTRICT COURT FROM NEWTON COUNTY
Per curiam. KELLER, P.J., and KEASLER, HERVEY and YEARY, JJ., dissenting. OPINION
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 2012) (not designated for publication).
Applicant contends that his trial counsel rendered ineffective assistance for a number of reasons, including failure to note that the foreman of the grand jury was also empaneled and served as the foreman of the trial jury, failure to file pre-trial motions to suppress, failure to object to the introduction of Sheriff's Department offense reports into evidence, failure to present alibi witness testimony, and failure to advise Applicant that the decision of whether or not to testify was his to make.
This Court remanded the matter to the trial court to obtain affidavits and findings addressing Applicant's ineffective assistance of trial counsel claims. On remand, trial counsel submitted an affidavit responding to Applicant's claims, and the trial court recommends denying relief based in part on that affidavit. However, trial counsel's affidavit contains some factual errors and the record does not support the trial court's findings of fact, conclusions of law and recommendation.
Based on an independent review of the record, this Court has determined that the totality of trial counsel's performance was deficient and that such deficient performance prejudiced Applicant. Relief is granted. The judgment in Cause No. ND 6336-A in the 1-A District Court of Newton County is set aside, and Applicant is remanded to the custody of the Sheriff of Newton County to answer the charges as set out in the indictment. The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division. Delivered: November 14, 2018
Do not publish