Opinion
No. WR-61,645-01
May 18, 2005. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus Cause No. 28,207 in the 13th District Court, Navarro County.
ORDER
This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.071, Tex. Code Crim. Proc. In July 2002, applicant was convicted of the offense of capital murder. The jury answered the special issues submitted pursuant to Article 37.071, Tex. Code Crim. Proc., and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Threadgill v. State, 146 S.W.2d 654 (Tex.Crim.App. 2004). Applicant presents eight allegations in his application in which he challenges the validity of his conviction and resulting sentence. In his fourth allegation, applicant claims, in part, that his trial counsel were ineffective for (1) failing to prepare for and cross-examine the State's expert witness, Dr. Lisa Clayton, and (2) failing to call his own mental health expert, Dr. Gilda Kessner, to rebut Clayton's testimony. Applicant's trial counsel did not address these allegations in affidavits filed in this case. There is nothing in the record indicating why counsel chose not to cross-examine Clayton, to utilize Kessner for Clayton's cross-examination, or to recall Kessner in rebuttal of Clayton's testimomy. Therefore, this cause is remanded to the trial court so that the habeas corpus record can be supplemented with affidavits or testimony from counsel specifically responding to these allegations. The trial court shall enter supplemental findings and forward its findings together with the supplemental evidence to this Court within ninety (90) days of the date of this Order. All other relief is denied. IT IS SO ORDERED.