Opinion
NO. WR-86,787-01
06-07-2017
EX PARTE MELVIN LEE SANDERS, III, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F47748 A IN THE 18TH DISTRICT COURT FROM JOHNSON COUNTY
Per curiam. KEASLER, J., not participating. 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 aggravated sexual assault of a child and sentenced to life imprisonment. The Tenth Court of Appeals affirmed his conviction. Sanders v. State, No. 10-14-00211-CR (Tex. App. — Waco, May 7, 2015) (not designated for publication).
Applicant contends, among other things, that his appellate counsel rendered ineffective assistance because appellate counsel raised a claim of factually insufficient evidence, citing the standard of review from Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). As the court of appeals noted in its opinion, in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) this Court disavowed the Clewis standard of review for factual sufficiency, and held that the proper standard for a challenge to the sufficiency of the evidence was the legal sufficiency standard of Jackson v. Virginia, 443 U.S. 307 (1979). The court of appeals in this case held that by requesting only a factual sufficiency review, Applicant had conceded the legal sufficiency of the evidence under Jackson. It appears that appellate counsel's performance was deficient in this respect, but the habeas record is insufficient to determine whether a correctly-raised legal sufficiency challenge would likely have succeeded on direct appeal.
This Court has reviewed Applicant's other allegations and finds them to be without merit.
Applicant also alleges that appellate counsel should have argued that the trial court abused its discretion by not granting Applicant's motion for a new trial based on alleged juror misconduct. Applicant alleges that he has attached as appendices to his habeas application an affidavit from a juror and a letter from trial counsel that were submitted in support of the motion for new trial, but neither of those appendices are included in the habeas record. The State in its response indicates that the motion for new trial was not presented to the trial court and that no hearing was conducted.
Applicant has alleged facts that, if true, might entitle him to relief. Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Strickland v. Washington, 466 U.S. 668 (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 appellate counsel to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d).
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 first supplement the habeas record with a copy of the motion for new trial filed in this case, as well as any affidavits or exhibits submitted in support of that motion. The trial court shall make specific findings of fact and conclusions of law as to whether the motion for new trial was presented to the trial court and whether a hearing on the motion for new trial was requested or held. The trial court shall make specific findings of fact and conclusions of law as to whether a properly raised challenge to the legal sufficiency of the evidence would have been likely to succeed on direct appeal. The trial court shall also make findings of fact and conclusions of law as to whether appellate counsel's performance was deficient, and if so, whether such deficiency 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 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. 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 must be requested by the trial court and shall be obtained from this Court. Filed: June 7, 2017
Do not publish