Opinion
NO. WR-92,668-01
05-26-2021
EX PARTE LYNN ALLEN ISBELL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR24450-A IN THE 35TH DISTRICT COURT FROM BROWN COUNTY
Per curiam. ORDER
Applicant was convicted of aggravated assault and sentenced to life imprisonment. The Seventh Court of Appeals affirmed his conviction. Isbell v. State, No. 07-18-00130-CR (Tex. App.—Amarillo del. Oct. 22, 2019). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.
Applicant raises claims of ineffective assistance of trial and appellate counsel—failing to raise claims regarding a search warrant, failing to request a limiting instruction regarding extraneous bad act evidence, conceding disputed factual issues at closing, and failing to argue on appeal that the trial court erred in denying a lesser-included instruction on deadly conduct. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX. CODE CRIM. PROC. art. 11.07, § 3(d).
The trial court shall order trial and appellate counsel to respond to Applicant's habeas claims. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX. CODE CRIM. PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to whether trial and appellate counsel's performance was deficient and Applicant was prejudiced. The trial court may make any other findings and conclusions that it deems appropriate.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX. R. APP. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. Filed: May 26, 2021
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