Opinion
No. WR-65,614-01
Filed: November 1, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. 01CR-15,488 in the 123rd Judicial District Court, from Shelby 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 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 thirty (30) years' imprisonment. The Twelfth Court of Appeals affirmed her conviction. Hughes v. State, No. 12-02-00254-CR (Tex.App.-Tyler, July 14, 2004, pet. ref'd). Applicant contends that her trial counsel rendered ineffective assistance because he failed to review the State's disclosures and so was not prepared for trial; failed to obtain independent testing of the shotgun and decedent's shirt and body in order to secure evidence in support of the defense's position that the shot was fired at close range while decedent was grabbing for the shotgun; failed to investigate and discover the ways in which the crime scene had been altered prior to the crime scene video recording; failed to present testimony of Julie Harris, decedent's ex-girlfriend, as to decedent's character for violence; failed to present testimony of decedent's former wives and grown children, as to decedent's character for violence; failed to present medical records documenting decedent's prior physical abuse of Applicant; and failed to investigate Applicant's statement that Curtis Lewis and other State's witnesses had reasons unrelated to the case for wanting Applicant's conviction and confinement. Applicant also contends that the prosecutor intimidated Julie Harris before trial by indicating to Ms. Harris or her sister that if Ms. Harris testified he would use confidential information that she had revealed to him while she was his client in order to discredit her, so that she was terrified of testifying, and at trial he did make disparaging remarks about her that were based on such confidences; failed to disclose favorable evidence, specifically, decedent's statements to law enforcement officials and his friends and family from the time of the shooting until the time of his death, in which the decedent described his intentions to kill or seriously injure Applicant both before and after the shooting. Applicant has alleged facts that, if true, might entitle her to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex.Crim.App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex.Crim.App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel and the prosecutor with the opportunity to respond to Applicant's claims of ineffective assistance of counsel and prosecutorial misconduct. 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. It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if Applicant is represented by counsel, and if not, whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint counsel to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04. The trial court shall make findings of fact as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make findings of fact as to whether the State intimidated Julie Harris by threatening to use confidential information if she testified, whether the State did use confidential information to discredit Ms. Harris, and whether the State failed to disclose favorable evidence. 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. 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.