Opinion
WR-94,255-01
04-26-2023
EX PARTE TOREY LEWAYNE SHAMBURGER, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W19-34438-R(A) IN THE 265TH DISTRICT COURT FROM DALLAS COUNTY
ORDER
PER CURIAM.
Applicant was convicted of aggravated robbery and sentenced to twenty years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Shamburger v. State, No. 05-20-00108-CR (Tex. App.-Dallas Jun. 15, 2021) (not designated for publication). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant essentially contended, among other things, that trial counsel was ineffective because he failed to investigate and present evidence of Applicant's mental issues that was relevant to both the guilt-innocence and punishment phases of trial. On November 9, 2022, the Court remanded this claim to the trial court for it to obtain a response from trial counsel and for it to make findings of fact and conclusions of law. The Court was unaware at that time that the trial court had entered findings and conclusions on October 11, 2022, as they were not part of the original writ record forwarded to the Court. Nevertheless, the trial court's findings do not adequately address the above ineffective assistance of counsel allegation and were made without the benefit of an affidavit from counsel.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). In these circumstances, additional facts are needed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant's claim. In developing the record, the trial court may use any means set out in Article 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 wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make supplemental findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant was prejudiced. The trial court shall make specific findings as to (1) whether counsel adequately investigated Applicant's mental history, intellectual history and status, disability status, and family background; and (2) how Applicant's histories and statuses effected counsel's trial strategy. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claim.
The trial court shall make supplemental findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.