Opinion
NO. WR-85,499-01
09-14-2016
EX PARTE RAYMOND KEITH ODOM, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. C32741-CR IN THE COUNTY COURT AT LAW 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 two counts of sexual assault of a child and sentenced to twenty-five years' imprisonment for each count, to run consecutively. The Tenth Court of Appeals affirmed his conviction. Odom v. State, No. 10-12-00059-CR (Tex. App. — Waco, May 8, 2014)(pet. ref'd).
Applicant contends that his trial counsel and appellate rendered ineffective assistance for various reasons. Applicant first alleges that appellate counsel was ineffective for inadequately briefing the issue of whether the trial court erred by excluding the defense's expert testimony based on medical records of the complainant which the trial court had determined were inadmissible. In the alternative, Applicant alleges that trial counsel did not adequately preserve this issue for appellate review by arguing that the evidence forming the basis of an expert's testimony need not be admissible in order for the testimony to be admissible under Rule 703 of the Texas Rules of Evidence.
Applicant also alleges that trial counsel was ineffective because she elected to have the trial court assess punishment without advising Applicant that the decision was his to make, and without informing him that the trial court not give him community supervision for these offenses, whereas a jury could. Applicant also alleges that trial counsel did not advise him that by electing to have the trial court assess punishment, he would be allowing the court to rely on the pre-sentencing investigation report rather than requiring the State to introduce punishment evidence.
Finally, Applicant alleges that trial counsel was ineffective for failing to adequately preserve error with regard to the trial court's exclusion of impeachment evidence. Applicant alleges that the trial court ruled that the defense could not impeach witness David Jackson with the fact that he had charges pending against him in another county at the time of his testimony. Applicant alleges that trial counsel should have argued that this evidence was admissible under Rule 613 of the Texas Rules of Evidence and under the Confrontation Clause, but did not so argue.
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 and appellate counsel 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 and conclusions of law as to whether the performance of Applicant's trial and appellate 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 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 shall be obtained from this Court. Filed: September 14, 2016
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