Opinion
No. WR-64,297-01
April 5, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus from Cause No. 114-0039-03-a in the 114th Judicial District Court of Smith County.
ORDER
This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of burglary of a habitation, and punishment was assessed at life confinement, to be served consecutively with an earlier 30-year sentence for burglary of a building. Applicant's conviction was affirmed on appeal. Roberson v. State No. 12-03-00110-CR(Tex.App.-Tyler, delivered March 31, 2005, no pet.) Applicant contends inter alia that trial counsel was ineffective for failing to pursue his objection to the prosecutor's comment on Applicant's failure to testify to an adverse ruling. The trial court has entered findings of fact and conclusions of law finding that counsel was effective. However, neither the trial court's findings nor the affidavit provided by counsel in response to Applicant's allegations addresses this specific claim. Although the trial court conducted an evidentiary hearing to address Applicant's habeas claims, there is no transcript of the proceeding, or of Applicant's trial, in the record. We do not believe that the trial court's factual findings are sufficient to completely resolve the issues presented. Because Applicant has stated facts requiring resolution and because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution of those issues. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order additional affidavits, depositions, or interrogatories from counsel or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection. If the trial court elects to hold another hearing, it shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing. The trial court shall then make findings of fact as to why defense counsel did not pursue his objection to an adverse conclusion by requesting a mistrial. In addition, the trial court shall make findings as to whether it would have granted a motion for a mistrial had one been made. The court shall make findings as to whether there was any evidence presented during the guilt/innocence phase to connect Applicant to this offense, other than the fingerprint which was the subject of the prosecutor's comment. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus. Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.Crim.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within ninety days of the date of this order. A supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within one hundred and twenty days of the date of this order. IT IS SO ORDERED.
In the event any continuances are granted, copies of the order granting the continuance shall be provided to this Court.
Any extensions of this time period shall be obtained from this Court.