Dukes, Shannon Dale

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-81,845-01

EX PARTE SHANNON DALE DUKES, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 8423 IN THE CRIMINAL DISTRICT COURT FROM JEFFERSON 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 continuous sexual

abuse of a child and sentenced to forty years’ imprisonment. The Thirteenth Court of Appeals

affirmed his conviction. Dukes v. State, No. 13-11-00434-CR (Tex. App. – Corpus Christi -

Edinburg, July 26, 2012).

Applicant contends that his trial counsel rendered ineffective assistance because counsel

failed to request lesser included offense instructions, failed to object to numerous instances of 2

extraneous offense/bad act/bad character evidence introduced by the State during the guilt/innocence

stage of trial, elicited some very damaging extraneous offense/bad act/bad character evidence from

the complainant’s mother on cross-examination, failed to object to improper hearsay and opinion

testimony from the complainant’s mother regarding what her therapist had told her, and failed to

argue that the State had opened the door to evidence of the complainant’s sexual activities with her

boyfriend and that to exclude such evidence violated his right to confront and cross-examine

witnesses. Applicant’s trial counsel has submitted two affidavits in response to this habeas

application. However, those affidavits are inadequate to address Applicant’s allegations. Although

the trial court has entered extensive findings of fact and conclusions of law, it is unclear whether

those findings and conclusions are based on the trial court’s personal recollection, or whether they

are based on other information not in the habeas record.

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 conduct a live habeas hearing, at which trial counsel shall respond in detail to Applicant’s

claims of ineffective assistance of counsel.

The trial court 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 3

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: September 24, 2014 Do not publish