Opinion
NO. WR-84,221-02
09-21-2016
EX PARTE KEVIN SCOTT, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 18616B IN THE 104TH DISTRICT COURT FROM TAYLOR COUNTY Per curiam. Alcala , J., filed a concurring opinion. 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 assault-family violence and sentenced to eight years' imprisonment. The Eleventh Court of Appeals affirmed his conviction. Scott v. State, No. 11-14-00131-CR (Tex. App.—Eastland, Aug. 6, 2015).
Applicant contends that his trial counsel rendered ineffective assistance by not investigating his mental health, not investigating the alleged prior offenses, not calling witnesses, telling him the wrong punishment range for the offense, failing to object to the entry of photos, and telling him that he had to plead guilty because his mother had no more money to pay him. He also alleges that appellate counsel failed to tell him of the outcome of his appeal, thereby denying his right to file a pro se petition for discretionary review.
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 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 make findings of fact and conclusions of law as to whether the performance of Applicant's trial 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. The district clerk shall also supplement the record with the indictment, judgment, and any plea papers. Any extensions of time shall be obtained from this Court. Filed: September 21, 2016
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