Opinion
NO. WR-87,889-01
01-24-2018
EX PARTE BOBBY ERNEST SMITH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR31219-A IN THE 75TH DISTRICT COURT FROM LIBERTY COUNTY
Per curiam. 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 murder and sentenced to life imprisonment. The Ninth Court of Appeals affirmed his conviction. Smith v. State, No. 09-15-00181-CR (Tex. App. — Beaumont, July 13, 2016) (not designated for publication).
Applicant contends that his trial counsel rendered ineffective assistance for various reason. Applicant alleges that trial counsel failed to present available evidence and witnesses in mitigation of punishment, failed to request lesser-included offense instructions on manslaughter and criminally negligent homicide although there was evidence to support such instructions, failed to prepare Applicant to testify while advising Applicant that he had to testify in order to raise self-defense, failed to request funding for defense experts, failed to secure an expert to re-test the DNA mixture found on the murder weapon, and erroneously advised Applicant to go to the trial court for sentencing because the trial court could disregard the minimum punishment applicable to a habitual felony.
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 claims of ineffective assistance of counsel. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
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 must be requested by the trial court and shall be obtained from this Court. Filed: January 24, 2018
Do not publish