Coleman, James Birtrant

• Court: Court of Criminal Appeals of Texas
• Decided: March 6, 2013
• Docket: WR-39,122-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-39,122-02 EX PARTE JAMES BIRTRANT COLEMAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 09378 IN THE 90TH DISTRICT COURT

FROM YOUNG 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 assault and sentenced to six years' imprisonment. He did not appeal his conviction.

Applicant contends that trial counsel rendered ineffective assistance because he failed to determine that Applicant had not been convicted of assault in cause number 0403109, interview the complainant, and investigate the offense and evidence from Graham Psychological Associates.

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 counsel to respond to Applicant's claim. In his response, counsel shall state, among other things, whether he investigated cause number 0403109 and shall describe his investigation of Applicant's case. 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

After reviewing counsel's response, the trial court shall first determine whether Applicant was convicted in cause number 0403109 and, if not, he has a previous conviction that would have elevated his offense to a third degree felony. Tex. Pen. Code § 22.01(b)(2). The trial court shall then determine whether counsel's conduct was deficient and, if so, Applicant would have pleaded not guilty but for this deficient conduct. Hill v. Lockhart, 474 U.S. 52 (1985). The trial court shall also direct the District Clerk to forward a copy of the reporter's record of the guilty plea hearing, if it exists. 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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