Opinion
No. 63,060-01
January 25, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, in Cause No. 02-0190X, in the 71st District Court from Harrison County.
ORDER
This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offenses of indecency with a child, sexual performance by a child, possession or promotion of child pornography, sexual assault, and aggravated sexual assault. Applicant was sentenced to confinement for three terms of ninety-nine years. Applicant's conviction was affirmed on appeal. Thomas v. State, No. 06-03-00115-CR (Tex.App.-6th, delivered March 3, 2004). Applicant alleges ineffective assistance of counsel. Specifically, Applicant contends that counsel failed to conduct an adequate investigation and interview witnesses. The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from counsel, or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection. If the trial court elects to hold a hearing, the court should first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing. Following receipt of additional information, the trial court should make findings of fact as to whether counsel investigated claims that J.S. was not present at Applicant's house after December 16, 2000. In addition, the trial court should make findings of fact as to whether counsel interviewed Pam Prentice, an alibi witness. If it is determined that counsel did neither of the above, the trial court should make findings of fact as to counsel's explanation. The trial court should also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus. Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.Crim.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date 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 returned to this Court within 120 days of the date of this order. IT IS SO ORDERED.
In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.
Any extensions of this time period should be obtained from this Court.