Opinion
NO. WR-87,436-01
10-04-2017
EX PARTE WILLIAM PRESTON HOPPER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W12877-1 IN THE 355TH DISTRICT COURT FROM HOOD 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 family violence and sentenced to life imprisonment. The Second Court of Appeals affirmed his conviction. Hopper v. State, 483 S.W.3d 235 (Tex. App. — Fort Worth, Jan. 14, 2016) (pet. ref'd).
Applicant contends, among other things, that his trial counsel rendered ineffective assistance because trial counsel failed to preserve error when the prosecutor twice commented on Applicant's failure to testify during closing arguments, and failed to call Applicant's parents to testify on his behalf at punishment.
This Court has considered Applicant's other claims and finds them to be without merit. --------
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 to respond to Applicant's claims of ineffective assistance of counsel. Specifically, trial counsel shall state why he did not pursue his objection to the prosecutor's first comment on Applicant's failure to testify to an adverse ruling, and why he did not object to the second comment. Trial counsel shall also state whether Applicant provided him with the names of potential witnesses, including Applicant's parents, and whether he interviewed or considered calling such witnesses to testify at the punishment stage of trial. 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 first supplement the habeas record with a copy of the portion of the trial transcript containing the closing arguments of the parties. 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 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: October 4, 2017
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