Bryant, Eugene James

• Court: Court of Criminal Appeals of Texas
• Decided: October 23, 2019
• Docket: WR-90,445-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,445-01

EX PARTE EUGENE JAMES BRYANT, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1372719-A IN THE 179TH DISTRICT COURT FROM HARRIS 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 assault of a

family member - impeding breathing and sentenced to twenty-five years’ imprisonment. He did not

appeal his conviction.

Applicant contends that his trial counsel rendered ineffective assistance because he failed to

object and to investigate, misled and misadvised Applicant, and failed to call Applicant to testify.

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 2

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 signed an order designating issues on January 15, 2019. After 180 days from

the day the writ application was served on the State, the writ application was forwarded to this Court.

TEX . R. APP . P. 73.5. However, the record has been forwarded without the trial court having

resolved the designated issue(s) in this case. We remand this application to the 179TH District Court

of Harris County to allow the trial judge to complete an evidentiary investigation and enter findings

of fact and conclusions of law. The trial court shall obtain a response from trial counsel to

Applicant’s claims 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.

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 3

be forwarded to this Court within 120 days of the date of this order. Any extensions of time must

be requested by the trial court and shall be obtained from this Court.

Filed: October 23, 2019 Do not publish