Opinion
No. WR-71,991-01
Delivered: May 20, 2009. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus Cause No. 55,243-B in the 181 St District Court from Potter 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of possession of a controlled substance and sentenced to ninety-nine years' imprisonment and a ten thousand dollar fine. The Seventh Court of Appeals affirmed his conviction. Pena v. State, No. 07-07-484-CR (Tex.App.-Amarillo, delivered July 14, 2008, no pet.). Applicant contends, inter alia, that his trial counsel rendered ineffective assistance by failing to file pre-trial motions, failing to investigate witnesses and failing to properly object. Applicant has attached an affidavit from trial counsel in which counsel admits to defective representation. Neither the State nor the trial court addressed counsel's affidavit. 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 determine whether Applicant's trial counsel's affidavit is credible. 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 filed any pre-trial motions and if not, if his failure to do so prejudiced the defense. The trial court shall make findings as to whether counsel investigated the State's witnesses and if not, whether his failure to do so prejudiced the defense. The trial court shall make findings of fact as to whether the performance of Applicant's trial attorney 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. 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.