Opinion
NO. WR-89,620-03
09-11-2019
EX PARTE LEROY WAYNE GARDINER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 16-05-05554-CR(2) IN THE 359TH DISTRICT COURT FROM MONTGOMERY 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 arson and sentenced to thirty-five years' imprisonment. The Ninth Court of Appeals affirmed his conviction. Gardiner v. State, No. 09-16-00192-CR (Tex. App.—Beaumont June 21, 2017) (not designated for publication).
Applicant contends, among other things, that trial counsel failed to investigate David Coen, the owner of the habitation, and determine whether the habitation was abandoned and met the definition of a "habitation."
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 the above claim. 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 make findings of fact and conclusions of law as to whether (1) counsel investigated the habitation in this case and determined whether it was abandoned and met the definition of a "habitation," see TEX. PENAL CODE § 28.01(1); Jones v. State, 532 S.W.2d 596, 600 (Tex. Crim. App. 1976) (holding that a structure "must at the time of the alleged offense have been actually 'adapted for the overnight accommodation of persons' or at least at some prior time used for the overnight accommodation of persons and still 'adapted for the overnight accommodation of persons'"); (2) counsel was deficient; and (3) Applicant was prejudiced. 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. 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: September 11, 2019 Do not publish