Opinion
NO. WR-86,751-01
05-24-2017
EX PARTE MICHAEL ODELL LOMAX, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 29995-A IN THE THIRD DISTRICT COURT FROM ANDERSON 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 injury to a child with severe bodily injury and sentenced to twenty-seven years and six months' imprisonment. The Twelfth Court of Appeals affirmed his conviction. Lomax v. State, 12-11-00250-CR (Tex. App.—Tyler Apr. 30, 2013).
Applicant contends that there is newly available scientific evidence which shows that he is actually innocent and that false testimony was used to convict him. Applicant also contends that his trial counsel rendered ineffective assistance by failing to consult and obtain an expert witness on child injuries and the biomechanics of dropped babies, failing to object to improper argument made by the State, failing to object to improper testimony, and failing to object to the admission of old psychiatric information.
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); Ex parte Chavez, 371 S.W.3d 200, 206-207 (Tex. Crim. App. 2012); Ex parte Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014). 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 claim 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 regarding the report from Dr. Charles Hyman attached to Applicant's habeas application. Those findings should include whether the information included in the report is based on relevant scientific evidence which was not available at the time of Applicant's trial as defined by TEX. CODE CRIM. PRO. Art. 11.073, whether the information in Dr. Hyman's report proves that Applicant is actually innocent of the charge, and whether the report is so reliable and so contradicts the testimony at trial that Applicant's conviction was based on false testimony. The trial court shall make findings as to whether defense counsel consulted any medical expert witnesses prior to trial and if not, why not. The trial court shall make findings as to whether counsel did not adequately object to the testimony and argument that Applicant complains of in his memorandum. The trial court shall also 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: May 24, 2017
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