Opinion
No. WR-66,060-01; -02; -03; -04; -05.
Filed: December 13, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus cause Nos. W366-80674-00(HC) through W366-80678-00(HC) in the 366th District Court From Collin County.
OPINION
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 these applications for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). In one trial involving five indictments, Applicant was convicted of four counts of aggravated kidnaping and three counts of violation of a protective order. Applicant was sentenced to twenty (20) years' confinement for one aggravated kidnaping conviction, twenty-five (25) years' confinement for three aggravated kidnaping convictions, and ten (10) years' confinement for each violation of the protective order. The Eleventh Court of Appeals affirmed his convictions. See Minger v. State, Nos. 11-01-00107-CR through 11-01-00111-CR, (Tex.App.-Eastland, January 16, 2003, no pet.) (not designated for publication). Applicant alleges, inter alia, that counsel was ineffective for raising an insanity defense at trial because the decision was based on an inadequate investigation. Specifically, he alleges that counsel should have interviewed State witnesses Pamela Ramsey, Brittany Stanberry, and Tammy Ramsey before he decided to raise the insanity defense. Also, counsel should have inquired into the evidence that defense expert Erin Owen — Salters, defense expert James Shupe, and State expert James Grigson were basing their evaluations upon. Instead of raising the insanity defense, Applicant further contends that counsel should have advised him to accept a plea offer of ten (10) years' confinement. In the alternative, counsel should have used the evidence of Applicant's mental disease or defect as mitigating evidence at punishment. Also, Applicant alleges that the State made an improper comment regarding the application of parole law during closing argument, that counsel objected, and that the trial court sustained the objection. Applicant alleges that counsel should have requested a curative instruction and should have moved for a mistrial. 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. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claims 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 of fact as to whether counsel interviewed witnesses and reviewed the evidence that the experts were basing their evaluations upon before he decided to raise an insanity defense. The trial court shall also make findings of fact as to whether counsel advised Applicant to accept a plea offer instead of going to trial. The trial court shall also make findings of fact as to whether counsel considered presenting evidence of Applicant's mental disease or defect as mitigating evidence instead of raising an insanity defense. Further, the trial court shall make findings of fact as to whether counsel requested that the trial court instruct the jury to disregard the State's comment about the parole law and whether counsel moved for a mistrial. 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. These applications 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. Any extensions of time shall be obtained from this Court.