Opinion
WR-95,082-01
10-11-2023
EX PARTE JOSEPH MCCORMICK, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 17-01-08135-CRR IN THE 143RD DISTRICT COURT FROM REEVES COUNTY
ORDER
PER CURIAM
Applicant was convicted of continuous sexual abuse of a child and sentenced to sixty years' imprisonment. The Eighth Court of Appeals affirmed his conviction. McCormick v. State, No. 08-18-00073-CR (Tex. App.-El Paso Sept. 27, 2021) (not designated for publication). 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 contends that trial counsel were ineffective because they failed to (1) seek the assistance of an expert to combat the testimony of the State's witness, Cori Armstead, about the complaining witness's injuries; (2) effectively cross-examine Armstead based on prevailing science; and (3) object during the prosecutor's closing arguments when he (a) repeatedly referred to Applicant as a "monster;" (b) improperly vouched for the credibility of State's witnesses; and (c) wept during his rendition of the complainant's accusations. 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 counsel to provide formal, supplemental responses to Applicant's claims. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if 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. See Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant was prejudiced. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.
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.