Opinion
No. WR-67,343-01
Filed: May 9, 2007. DO NOT PUBLISH.
On application for a Writ of Habeas Corpus, Cause No. 2003-401,700 in the 140th District Court from Lubbock 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of murder and sentenced to fifty years' imprisonment. The Sevent Court of Appeals affirmed his conviction. Chavez v. State, No. 07-03-0509-CR (Tex.App.-Amarillo, delivered June 15, 2005, no pet.). Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because he failed to investigate the complainant's criminal history, failed to object to the jury charge, failed to object to improper comments and arguments by the prosecutor, failed to object to victim impact evidence being introduced during the guilt-innocence phase of his trial, failed to object to improper character evidence being introduced regarding the complainant at guilt-innocence, failed to preserve error for appeal, failed to interview witnesses, failed to object to the prosecutor's knowing use of perjured testimony, failed to prepare Applicant prior to his taking the witness stand, failed to object to prosecutor and jury misconduct when the prosecutor was observed speaking to a juror outside the courtroom during trial, and counsel failed to present mitigating evidence at punishment. Also, the Applicant contends that the prosecutor knowingly introduced perjured testimony during the trial. 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 order Applicant's trial counsel to respond to Applicant's claim of ineffective assistance of counsel. In addition, the trial court shall order the prosecutor in this cause to respond to Applicant's claim that perjured testimony was knowingly presented at trial. The trial court shall order affidavits, or it may hold a hearing, as provided for 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 Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04. The trial court shall 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. Also, the trial court shall make findings of facts as to whether the prosecutor knowingly allowed perjured testimony to be introduced at trial. 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. 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 120 days of the date of this order. Any extensions of time shall be obtained from this Court.