Opinion
No. WR-73,115-01
Filed: February 3, 2010. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus Cause No. C-371-008922-0951439-A in the 371st District Court from Tarrant 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 four counts of aggravated sexual assault of a child and sentenced to 99 years' imprisonment on each count. The Second Court of Appeals affirmed his conviction. See Pierson, Jr. v. State, No. 2-06-271-CR, (Tex. App.-Fort Worth, 2008, pet. ref'd.) (not designated for publication). Applicant alleges, inter alia, that trial counsel rendered ineffective assistance because counsel failed to object to Donna Duclow's testimony on the ground of "improper bolstering" thus not preserving the error for appellate review, counsel opened the door to the introduction of evidence concerning Applicant's confinement in an unrelated cause during the guilt phase of trial, and counsel failed to use Child Protective Services records from a 2001 investigation to impeach the complainant's testimony. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984). 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 Applicant's trial counsel to file an affidavit response to Applicant's claims for habeas relief. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) to resolve the fact issues. 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 the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. Specifically, the trial court shall make findings of fact as to whether counsel failed to object to Duclow's testimony on the ground of "improper bolstering" thus not preserving the error for appellate review, whether counsel opened the door to the introduction of evidence concerning Applicant's confinement in an unrelated cause during the guilt phase of trial, and whether counsel failed to use Child Protective Services records from a 2001 investigation to impeach the complainant's testimony. 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. Any extensions of time shall be obtained from this Court.