Opinion
NO. WR-87,911-01
01-24-2018
EX PARTE ARCHIE LEE SMITH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W06-73389-V (A) IN THE 292ND DISTRICT COURT 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 murder and sentenced to forty years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Smith v. State, No. 05-08-00154-CR (Tex. App. — Dallas, Dec. 7, 2009) (not designated for publication).
Applicant contends, among other things, that his trial counsel rendered ineffective assistance because trial counsel failed to investigate and failed to file a pre-trial motion to suppress Applicant's custodial statement on the basis of Applicant's mental state at the time he made the statement, and on the basis that the sign language interpreter who translated during the taking of the custodial statement was not qualified. Applicant also alleges that trial counsel should have challenged the qualifications of the sign language interpreter at trial.
This Court has reviewed Applicant's other claims and finds them to be without merit. --------
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 investigated Applicant's mental state at the time he gave his custodial statements, and whether he considered filing a motion to suppress the statement on this or any other basis. Trial counsel shall state whether Applicant indicated at any time during trial that he was having difficulty understanding the sign language interpreter, and if so, whether trial counsel made any objection on the record. 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: January 24, 2018
Do not publish