Opinion
No. WR-73,582-01
Filed: March 24, 2010. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus Cause No. CR00827-HC, appeal from the 6th Judicial District Court, Red River 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 delivery of a controlled substance and sentenced to life imprisonment. The Sixth Court of Appeals affirmed his conviction. Doolittle v. State, No. 06-07-00069-CR (Tex. App.-Texarkana, June 5, 2008, pet. ref'd). Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel asked questions during cross-examination of a State's witness which opened the door to prejudicial extraneous offense evidence. 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. 1960), 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 by submitting an affidavit or by giving live testimony stating why counsel questioned Deputy Garrett about her prior contacts with Applicant, and whether counsel anticipated that such questions might open the door to further testimony and evidence regarding an extraneous offense. 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 had a reasonable trial strategy in asking Deputy Garrett about her prior contact with Applicant on September 9, 2005, and whether counsel anticipated that such questions could open the door to extraneous offense evidence. The trial court shall make findings 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 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.