Brown, Otis Ray

• Court: Court of Criminal Appeals of Texas
• Decided: March 6, 2013
• Docket: WR-79,071-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-79,071-01 EX PARTE OTIS RAY BROWN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 22635-HC-1 IN THE 6TH DISTRICT COURT

FROM LAMAR COUNTY

Per curiam.

O R D E R

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 possession of marijuana and unlawful possession of a firearm by a felon. He was sentenced to fifteen months in the state jail for the marijuana charge and to fifteen years in TDCJ for the firearm charge. There was no direct appeal.

Applicant contends that his trial counsel rendered ineffective assistance. He complains that counsel failed to investigate and learn that Applicant did not reside at the residence where the firearm was found, that he was not in close proximity to the firearm, and that he did not know the firearm was in the residence, and he says no evidence or witness could link him to the firearm. He alleges that he would have been found not guilty of unlawfully possessing the firearm after trial had counsel not been ineffective in allowing him to plead guilty under these facts. Applicant also alleges that the firearm conviction was improperly enhanced. It does not appear there were any enhancement paragraphs in the indictment, and there is no enhancement notice in the writ record provided to this Court. The judgment indicates Applicant is a repeat offender, but it also indicates there were no pleas to an enhancement allegation.

Regarding these two claims, 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). His remaining claims lack merit. 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 and his claim regarding the enhancement. 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, and it shall make findings and conclusions on the enchantment claim. 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.

Filed: March 6, 2013

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