Opinion
NO. WR-84,809-01
06-22-2016
EX PARTE CYNTHIA ANN HUDSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2009F00005 IN THE 5TH DISTRICT COURT FROM CASS 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 capital murder and sentenced to life imprisonment. The Sixth Court of Appeals affirmed her conviction in Hudson v. State, 415 S.W.3d 891, 897 (Tex. App.—Texarkana 2013), aff'd, 449 S.W.3d 495 (Tex. Crim. App. 2014).
Applicant contends that her trial counsel rendered ineffective assistance because counsel failed to request a jury instruction on the lesser included offense of felony murder. Applicant also alleges that counsel failed to investigate and present evidence regarding the primary witnesses' and deceased's psychological state; namely, the syndrome known as Reactive Attachment Disorder (RAD).
Applicant has alleged facts that, if true, might entitle her 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. Counsel has provided an affidavit. However, it is this Court's opinion that more information is needed before this Court can render a decision on the aforementioned grounds for review, and because this Court cannot hear evidence, Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d).
It appears that Applicant is represented by counsel. The trial court shall determine whether Applicant is represented by counsel, and if not, 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 was following his client's commands by not requesting the instruction on the lesser included offense of felony murder. The trial court also shall make findings of fact as to whether counsel's failure to request an instruction on the lesser included offense of felony murder was deficient or was based on reasonable trial strategy. If the trial court finds counsel did not have a reasonable trial strategy for failing to object to the jury charge, then the court shall determine whether Applicant was prejudiced under the second prong of Strickland. The trial court shall make findings of fact as to whether counsel conducted an independent investigation into the RAD syndrome. If the trial court finds that counsel did not conduct an investigation into the RAD syndrome, then the court shall determine whether counsel's failure to investigate amounts to deficient performance. 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 shall be obtained from this Court. Filed: June 22, 2016
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