Davis, Wesley Dale

• Court: Court of Criminal Appeals of Texas
• Decided: March 12, 2014
• Docket: WR-80,776-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-80,776-01 EX PARTE WESLEY DALE DAVIS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. CR2009-403-1 IN THE 207TH DISTRICT COURT

FROM COMAL 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 three counts of aggravated robbery and one count of unlawful possession of a firearm by a felon. He was sentenced to seventy years' imprisonment for each of the aggravated robbery counts, and ten years' imprisonment for the unlawful possession of a firearm count, all running concurrently. The Third Court of Appeals affirmed his conviction. Davis v. State, No. 03-10-00412-CR (Tex. App. - Austin, July 25, 2012, pet. ref'd.).

Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to challenge a biased juror. Applicant also alleges that he was denied due process when the biased juror served on the jury that convicted him. Applicant alleges that he was not aware that trial counsel was waiving his right to challenge the biased juror.

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 claims of ineffective assistance of counsel. Specifically, counsel shall state why he did not challenge venire member Yvonne Bays for cause after she stated that she could not afford the presumption of innocence to a defendant who had been previously convicted of an offense. Trial counsel shall state whether he advised Applicant that Applicant's prior conviction would be admitted during the guilt/ innocence phase of trial, and whether he advised Applicant that he was waiving a challenge to venire member Yvonne Bays. 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 first supplement the habeas record with a complete transcript of the voir dire proceedings in this case. The trial court shall then 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 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 12, 2014

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