Brecheen, Roger Dale

• Court: Court of Criminal Appeals of Texas
• Decided: December 9, 2015
• Docket: WR-73,072-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-73,072-03

EX PARTE ROGER DALE BRECHEEN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 23,302-A IN THE 42ND DISTRICT COURT FROM TAYLOR 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 forty-eight years’ imprisonment. The Eleventh Court of Appeals affirmed his

conviction. Brecheen v. State, 372 S.W.3d 706 (Tex. App.—Eastland 2012).

Applicant contends that his trial counsel rendered ineffective assistance because, among other

things, he did not allow applicant to testify on his own behalf and did not investigate the primary

defense witness before eliciting damaging testimony. 2

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Rock v. Arkansas, 483 U.S. 44, 50-53 (1987); 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). 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 Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

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 make specific findings as to whether counsel

prevented Applicant from testifying against Applicant’s wishes. Should the trial court find that

Applicant was wrongly prevented from testifying, it shall make specific findings addressing whether

Applicant was harmed under Strickland. The trial court shall also make specific findings addressing

Applicant’s claim that counsel did not fully investigate the main defense witness before proffering

her testimony and eliciting damaging testimony. 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 3

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.

Filed: December 9, 2015 Do not publish