Opinion
No. WR-62,571-01
Delivered: December 14, 2005. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus Cause Number 01-03-045-Crw-a in the 81st, District Court Wilson County.
ORDER
This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07 of the Texas Penal Code. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted by a jury of manslaughter. He was sentenced to prison for twenty years and a $5000 fine. The conviction was affirmed on direct appeal. Yates v. State, No. 136 S.W.3d 262 (Tex.App.-San Antonio 2004) In this application for a writ of habeas corpus, Applicant contends, inter alia, that his trial counsel was ineffective. Specifically, he alleges as follows: (1) that his counsel failed to object to the jury charge that incorrectly defined recklessness, the culpable mental state for manslaughter; (2) that his counsel failed to object to the jury charge that incorrectly omitted an instruction regarding parole law; (3) that his counsel failed to object to the exclusion of evidence concerning the victim that was favorable to the defense and the issue of self-defense; and (4) that counsel opened the door to and allowed the introduction of evidence concerning alleged connections, associations, and communications with pro-white organizations or persons. The trial court has not entered findings of fact and conclusions of law, and it is this Court's opinion that additional information is needed before this Court can render a decision on these grounds for review, including an affidavit from trial counsel addressing Applicant's ineffective assistance of counsel claims. The record to this Court shall also be supplemented to include the jury charge at guilt/innocence, any motions in limine filed, any ruling on such motions, and any exhibits, transcripts of testimony, or other documents the court deems pertinent to Applicant's claims. Because this Court cannot hear evidence, Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex.Crim.App. 1960), the trial court is the appropriate forum. The trial court shall resolve these issues as set out in Article 11.07, Section 3(d), of the Texas Code of Criminal Procedure, in that it shall order affidavits. The trial court may also order depositions, interrogatories, or hold a hearing. In the appropriate case, the trial court may rely on its personal recollection. If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent, and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Article 26.04 of the Texas Code of Criminal Procedure, appoint an attorney to represent him at the hearing. Following the receipt of additional information, the trial court shall determine whether Applicant was denied effective assistance of counsel, and the trial court shall make any further findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's application for habeas corpus relief. Further, because this Court does not hear evidence, Ex parte Rodriguez, 334 S.W.2d at 294, this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date 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, and other documents, shall be returned to this Court within 120 days of the date of this order.
In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.
Any extensions of this time period should be obtained from this Court.