Opinion
No. WR-70,692-01
Delivered: December 17, 2008. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. A-32,582, in the 70th District Court, from Ector County.
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 assault and sentenced to twelve years' imprisonment. The Eleventh Court of Appeals affirmed his conviction. McDade v. State, No. 11-06-00183-CR (Tex.App.-Eastland, April 3, 2008, no pet.). Applicant contends that trial counsel rendered ineffective assistance because she did not: (1) investigate Applicant's case; (2) properly object to the admission of extraneous offenses during the guilt stage; (3) request an instruction on extraneous offenses during the punishment stage; (4) object to the jury charge on guilt and request an instruction on the definition of a deadly weapon; and (5) investigate and introduce evidence showing that before the offense the complainant had stabbed Applicant twice and had shot him once. Applicant also contends that appellate counsel rendered ineffective assistance because she: (1) did not provide the court of appeals with legal citations in support of her argument; (2) argued that there was insufficient evidence of serious bodily injury when Applicant was charged with causing bodily injury, not serious bodily injury; (3) did not properly raise sufficiency of evidence; and (4) did not argue that the State had engaged in prosecutorial misconduct. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex.Crim.App. 2000). 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 provide Applicant's counsel with the opportunity 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04. The trial court shall make findings of fact as to whether the performance of Applicant's trial and appellate counsel was deficient and, if so, whether Applicant was prejudiced. 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 claims 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. A copy of the jury charge on guilt shall also be returned to this Court with the trial court's supplemental findings of fact and conclusions of law. Any extensions of time shall be obtained from this Court.