Barganski, Robert Eugene

• Court: Court of Criminal Appeals of Texas
• Decided: January 13, 2016
• Docket: WR-84,254-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-84,254-01

EX PARTE ROBERT EUGENE BARGANSKI, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. A-06-5019-CR(HC1) IN THE 36TH DISTRICT COURT FROM ARANSAS 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 twenty-five years’ imprisonment. He did not appeal his conviction.

Applicant contends that his trial counsel rendered ineffective assistance because he did not

consult with a medical expert to review the medical records and determine whether in fact the

complainant was pregnant. He alleges that the medical records from the complainant’s treatment

after this incident show that she was not actually pregnant, and if she was not pregnant, then he could

not have been found guilty of this murder. 2

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 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).

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 as to whether counsel consulted an expert witness

to determine whether the complainant was pregnant at the time of the shooting. 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 shall

be obtained from this Court. 3

Filed: January 13, 2016 Do not publish