Opinion
NO. WR-87,210-01
08-23-2017
EX PARTE BRUCE WAYNE HARP, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR30729-A IN THE 253RD DISTRICT COURT FROM LIBERTY COUNTY
Per curiam. 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of continuous sexual abuse of a young child and sentenced to thirty-five years' imprisonment. The Ninth Court of Appeals affirmed his conviction. Harp v. State, No. 09-14-00201-CR (Tex. App. — Beaumont, Dec. 9, 2015) (not designated for publication).
Applicant contends, among other things, that his trial counsel and his appellate counsel rendered ineffective assistance. Applicant alleges that trial counsel failed to investigate and interview witnesses prior to trial, failed to call witness Olivia Harp to testify that she was present when the sexual abuse was alleged to have occurred but did not witness any abuse, failed to call witnesses to testify during the guilt/innocence stage as to Applicant's good character for being law-abiding and his moral and ethical treatment of children, failed to call character witnesses at punishment, failed to object to the jury charge or request an instruction requiring the jury to unanimously find that the acts comprising the offense were committed on or after the effective date of the continuous sexual abuse of a young child statute, failed to seek appointment of an expert on sexual abuse of children to help her prepare for trial and to assist during the guilt/innocence phase, and failed to properly support her request for appointment of an expert to assist during the punishment phase.
This Court has reviewed Applicant's other claims and finds them to be without merit.
Applicant alleges that appellate counsel, who filed an Anders brief, should have argued that the trial court erred by failing to grant trial counsel's request for funds to secure an expert witness to assist her at the punishment stage of trial. Although Applicant does not allege that appellate counsel should have raised the jury charge error issue on appeal, we note that jury charge error is cognizable on direct appeal even if it is not preserved by contemporaneous objection, although such an error will result in reversal only if it can be shown to have caused egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 order trial counsel and appellate counsel to respond to Applicant's claims of ineffective assistance of counsel. 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 and conclusions of law as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall make findings of fact and conclusions of law as to whether the performance of Applicant's appellate counsel 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time must be requested by the trial court and shall be obtained from this Court. Filed: August 23, 2017
Do not publish