Opinion
No. WR-47,282-03
March 8, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, from Bowie County, in Cause No. 00F0659-202. in the 202nd District Court.
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 aggravated sexual assault of a child and sentenced to confinement for ninety-nine years. Applicant's conviction was affirmed on appeal. Goodspeed v. State, No. 06-01-00227-CR (Tex.App.-Texarkana, delivered June 21, 2005, no pet.). Applicant contends that trial counsel was ineffective. Specifically, he contends that trial counsel (1) failed to conduct an adequate voir dire and used two peremptory strikes for veniremembers who had been previously excused; (2) failed to cross-examine the complainant and outcry witness at a hearing pursuant to Tex. Code Crim. Proc. art. 38.072; (3) failed to investigate facts that might have revealed a different perpetrator; (4) failed to object at trial to the admission of an outcry statement and subsequent testimony of an outcry witness; and (5) failed to object at trial to the hearsay testimony of a non-designated outcry witness. 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 may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order affidavits, depositions, or interrogatories from trial counsel, 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 was ineffective (1) for not conducting an adequate voir dire and for using two peremptory strikes for veniremembers who had been previously excused; (2) for not cross-examining the complainant and outcry witness, Jackie Johnson, at a hearing pursuant to Tex. Code Crim. Proc. art. 38.072, and for not questioning the veracity and reliability of the outcry statement and Johnson's qualifications as an outcry witness under art. 38.072; (3) for not questioning the complainant's grandmother and adequately investigating whether the complainant was sexually assaulted by her cousin, Kevin; (4) for not objecting at trial to the admission of an outcry statement and subsequent testimony from the outcry witness, Jackie Johnson; and (5) for not objecting at trial to outcry testimony from Cecelia Cole, who was not designated as an outcry witness. The trial court shall also make any 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.