Opinion
No. WR-70,270-02
Filed: June 10, 2009. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. 0976579d in the 213th District Court from Tarrant 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of capital murder and sentenced to life imprisonment. The Second Court of Appeals affirmed his conviction. Wilson v. State, No. 02-06-00136-CR (Tex.App.-Fort Worth, June 28, 2007, pet. ref'd). Applicant contends that his trial counsel rendered ineffective assistance because he failed to investigate a 911 call Cornelius Wingate made in which he described the suspect as a Hispanic male. Applicant has alleged facts that, if true, might entitle him 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. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall make findings of fact as to whether the factual basis of Applicant's claim was "ascertainable through the exercise of reasonable diligence" on the date he filed his previous application. Tex. Code Crim. Proc. art. 11.07, § 4(c). If the trial court finds that the factual basis was not ascertainable, it shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04. If the trial court finds that the factual basis of Applicant's claim was not ascertainable on the date he filed his previous application, 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. 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.