Brister, Mark Randall

• Court: Court of Criminal Appeals of Texas
• Decided: November 18, 2015
• Docket: WR-64,512-06
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-64,512-06

EX PARTE MARK RANDALL BRISTER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. A-090719-AR IN THE 128TH DISTRICT COURT FROM ORANGE 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 driving while

intoxicated and sentenced to forty years’ imprisonment. The Ninth Court of Appeals affirmed his

conviction, but struck the deadly weapon finding from the judgment. Brister v. State, 414 S.W.3d

336 (Tex. App.—Beaumont), aff’d, 449 S.W.3d 490 (Tex. Crim. App. 2014).

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

because counsel (1) failed to object to the State’s admission of Applicant’s refusal of the breath test 2

without predicate evidence of a statutory warning, (2) failed to exercise a preemptory challenge on

venire member 22, who stated during voir dire that her daughter was killed by a drunk driver, (3)

failed to object to the trial court’s denial of a proper strike of venire member 16, who stated that, if

Applicant had a prior conviction for driving while intoxicated, it was likely he was guilty of the

instant offense, (4) failed to object to the State’s comment in voir dire that Applicant had

“conviction after conviction” and had been “in and out of prison,” (5) failed to investigate good

cause for delay of the indictment, and, (6) failed to object to the prosecution commenting on

Applicant’s refusal to give a specimen as an admission of guilt.

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 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. 3

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.

Filed: November 18, 2015 Do not publish