Opinion
NO. WR-24,732-05
08-23-2017
EX PARTE EARL CHARLES MARTIN, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1413896-A IN THE 174TH DISTRICT COURT FROM HARRIS 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 aggravated sexual assault of a child and sentenced to life imprisonment. The First Court of Appeals affirmed his conviction. Martin v. State, No. 01-14-00202-CR (Tex. App. — Houston [1st Dist.] Dec. 16, 2014) (not designated for publication).
Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to meet with him or communicate with him about the case until seven days before trial, failed to adequately investigate the facts, relying instead on a non-meritorious defensive theory, failed to interview and call available witnesses, failed to require the State to elect which offense it would rely upon for a conviction, and generally failed to subject the State's case to meaningful adversarial testing.
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). On September 26, 2016, the trial court signed an order designating issues requiring Applicant's trial counsel to submit an affidavit responding to specific issues. After more than 180 days passed without further action, the district clerk was required to forward the application to this Court. However, 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 as specified in its September 26, 2016, order. 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 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 30 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 60 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