Opinion
No. WR-62,657-02
Filed: October 11, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. 00-10-10447-B in the 155th District Court, from Waller 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 aggravated robbery and sentenced to seventy-five years' imprisonment. The Tenth Court of Appeals affirmed his conviction. Tate v. State, No. 10-01-239-CR (Tex.App.-Waco, Delivered August 4, 2003, no pet.) On May 3, 2006, this Court remanded to the trial court for further findings regarding Applicant's claim that his trial counsel rendered ineffective assistance because he failed to prepare for trial, advised Applicant to waive a jury trial, and failed to interview and call alibi witnesses who would have testified that Applicant could not have committed the offense. On remand, the trial court appointed counsel for Applicant and held a hearing. At the hearing, five witnesses testified that they were available and willing to testify at Applicant's trial, and that they would have testified that Applicant was in Houston at the time the offense was committed in Sealy or Brookshire. The transcript of the habeas hearing is in the supplemental record, but the trial court has not made any findings as to the credibility of the witnesses who testified at the hearing. The trial court has entered findings indicating that Applicant's original trial counsel is deceased, and that the court cannot therefore make the findings requested by this Court on remand regarding counsel's trial strategy and reasons for not calling the witnesses. The record before this Court is insufficient to allow the Court to make a determination as to the resolution of Applicant's claims. Because Applicant has stated facts which might entitle him to relief, and because the first remand did not result in a resolution of his claims, we again remand the cause to the trial court again for supplementation of the habeas record. The trial court shall make findings regarding the credibility of the witnesses who testified at the habeas hearing. The court shall also make findings as to the date upon which Applicant's trial counsel died. This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 30 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 60 days of the date of this order. Any extensions of time shall be obtained from this Court.