Opinion
NO. WR-88,432-01
06-06-2018
EX PARTE LONNIE BRYANT SOMERVILLE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W14-76272-I (A) IN THE CRIMINAL DISTRICT COURT NO. 2 FROM DALLAS 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 aggravated assault and sentenced to seventy-two years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Somerville v. State, No. 05-16-00056-CR (Tex. App. — Dallas, Dec. 16, 2016) (not designated for publication).
Applicant contends that his trial counsel rendered ineffective assistance for various reasons. Applicant alleges that trial counsel failed to correctly communicate a thirty-year plea offer to him, failed to show or explain the State's evidence to him so that he could make an informed decision about whether to plead guilty or go to trial on the charges, failed to ask potential jurors whether they or anyone they knew had been the victim of an aggravated assault, failed to adequately challenge the State's use of a prior remote conviction to impeach Applicant when he elected to testify, and failed to seek independent testing of forensic evidence.
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. Specifically, trial counsel shall state whether he accurately communicated the State's plea offers to Applicant, and whether he met with Applicant to discuss the State's evidence before Applicant made the decision of whether to accept or reject any such offers. Trial counsel shall state whether he asked questions during voir dire to determine if potential jurors had prior experience with offenses similar to that with which Applicant was charged, and if not, why not. Trial counsel shall state whether he discussed with Applicant the possibility of his testifying on his own behalf prior to trial. If they did discuss this possibility, trial counsel shall state whether he filed a motion in limine with regard to Applicant's prior convictions, and if not, why not. Trial counsel shall state whether he was familiar with the requirements for admission of prior remote convictions under Rule 609(b) of the Texas Rules of Evidence, and if so, why he did not hold the State to its burden of providing "specific facts and circumstances" to show that the probative value of Applicant's 1986 conviction for aggravated assault substantially outweighed its prejudicial effect. Trial counsel shall also state whether he considered seeking independent testing of physical evidence prior to trial, and if not, why not.
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: June 6, 2018 Do not publish.