Opinion
NO. WR-87,236-01
04-18-2018
EX PARTE JARVIS DUNK MCDAVID, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D35700-CR IN THE 13TH DISTRICT COURT FROM NAVARRO 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 assault and sentenced to fifteen years' imprisonment. The Tenth Court of Appeals affirmed his conviction. McDavid v. State, No. 10-15-00112-CR (Tex. App.—Waco Dec. 3, 2015) (not designated for publication).
In his fourth ground, Applicant contends, among other things, that trial counsel failed to investigate and contact his alibi witness. After we remanded this application, a sworn affidavit from Michael Leaks was forwarded with the supplemental record. In his affidavit, Leaks says he was an alibi witness.
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). 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 that counsel failed to investigate and contact his alibi witness. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 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 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 further findings of fact and conclusions of law as to whether counsel was deficient for not investigating and contacting Leaks. The trial court shall also determine 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 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: April 18, 2018 Do not publish.