Opinion
NO. WR-84,823-02
09-21-2016
EX PARTE STEPHEN COLEMAN SHOCKLEY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W366-82727-09-HC IN THE 366TH DISTRICT COURT FROM COLLIN 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 continuous sexual abuse of a child and sentenced to ninety-nine years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Shockley v. State, No. 05-12-01018-CR (Tex. App.—Dallas July 30, 2014).
Applicant contends that his trial counsel rendered ineffective assistance because counsel: (1) opened the door to otherwise inadmissable testimony for introducing evidence of Applicant's good character; (2) failed to request a limiting instruction as to the rebuttal witness' extraneous testimony; (3) failed to object to the prosecutor's closing statement in which the prosecutor "placed unindicted collateral matter before jurors as a basis for conviction;" (4) failed to object to the complainant's inadmissible forensic interview video; (5) failed to object to the complainant's testimony who testified via prerecorded video and was unavailable for confrontation; (6) failed to object to the State's expert witness who commented directly on the truthfulness of another witness; (7) failed to investigate a State's witness and left evidence undeveloped that the complainant's custodial father molested a family member years prior; and, (8) failed to investigate or call witnesses during punishment who would have testified as to Applicant's character during punishment.
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. Any extensions of time shall be obtained from this Court. Filed: September 21, 2016
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