Opinion
No. WR-63,488-01
May 3, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. 2002-115A in the 274th District Court, Caldwell County.
ORDER
This is an application for a writ of habeas corpus that was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of driving while intoxicated and sentenced to confinement for thirty years. Applicant's conviction was affirmed on appeal. Drake v. State, No. 03-02-00809-CR (Tex.App.-Austin, delivered May 6, 2004, no pet.). Applicant contends that counsel was ineffective for not investigating whether a person named Gregg was the driver of the truck in question; for not investigating the circumstances of Applicant's exit from the truck; and for not objecting to testimony from a person from the local fire department who said that Applicant was "probably driving.". The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from, or it may order a hearing. In the appropriate case the trial court may also rely on its personal recollection. If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court shall then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing. Following receipt of additional information, the trial court shall make findings of fact as to whether counsel investigated the possibility that a person named Gregg was driving the truck. The trial court shall also make findings of fact as to whether counsel investigated the circumstances of Applicant's exit from the truck. Finally, the trial court shall make findings of fact as to counsel's reasons for not objecting when a person from the local fire department testified that Applicant was "probably driving." The trial court shall then make findings of fact as to whether counsel was ineffective. The trial court shall make further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus. Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.Crim.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date 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 returned to this Court within 120 days of the date of this order. IT IS SO ORDERED.
In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.
Any extensions of this time period shall be obtained from this Court.