Opinion
WR-93 079-01
03-30-2022
EX PARTE DONALD BLAINE DAVIS, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 24475 IN THE 91ST DISTRICT COURT FROM EASTLAND COUNTY
ORDER
PER CURIAM
Applicant was convicted of murder and sentenced to ninety-nine years' imprisonment. The Eleventh Court of Appeals affirmed his conviction. Davis v. State, No. 11-17-00020-CR (Tex. App.-Eastland Dec. 31, 2018) (not designated for publication). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends, among other things, that trial counsel was ineffective because he failed to preserve error during Diane Rodriguez's testimony; failed to file a motion in limine and, if necessary, object to inadmissible testimony from Bobbie Jo Johnson and Texas Ranger Shane Morrow; and failed to cross-examine the testifying pathologist or to call an expert to testify about the effect of the methamphetamine in the deceased's system on his behavior. The trial court made findings of fact and recommends that the Court deny relief. However, the Court finds that the trial court's findings insufficient to resolve Applicant's ineffective assistance of counsel claim.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). In these circumstances, additional facts are needed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if Applicant is represented by counsel, and if not, 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. See Tex. Code Crim. Proc. art. 26.04.
The trial court shall make detailed, supplemental findings of fact and conclusions of law as to whether (1) Applicant suffered prejudice from counsel's failure to preserve error during Diane Rodriguez 's testimony; (2) the complained-of testimony from Bobbie Jo Johnson was inadmissible, and if so, whether Applicant was prejudiced by counsel's failure to object to it; (3) the complained-of testimony from Texas Ranger Shane Morrow was inadmissible, and if so, whether Applicant was prejudiced by counsel's failure to object to it; and (4) Applicant suffered prejudice from counsel's failure to call an expert to testify about the effects of the methamphetamine in the deceased's system on his behavior. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claim.
The trial court shall make supplemental findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.