Opinion
No. WR-73,394-01
Filed: March 3, 2010. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus. Cause No. 2006-1465-C2 in the 19th District Court. Appealed from McLennan County.
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 one count of aggravated sexual assault of a child and three counts of indecency with a child. He was sentenced to fifteen years' imprisonment on each count. The Tenth Court of Appeals affirmed his convictions. Smith v. Texas, No. 10-07-00126-CR (Tex. App.-Waco 2008, pet. ref'd). Applicant contends that the Double Jeopardy Clause was violated when he received multiple punishments for a single offense and that trial counsel was ineffective for eliciting or failing to object to inadmissible testimony from the complainant, her mother, Andrea Jones, and Johnny Spillman. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); North Carolina v. Pearce, 395 U.S. 711 (1969). 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04. The trial court shall first make findings of fact as to what evidence was presented at trial to support counts one and two in the indictment. It shall then make findings as to whether these counts constituted a single offense for purposes of the Double Jeopardy Clause. It shall also make findings 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 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.