Dunn, Brad Allen

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-86,919-01

EX PARTE BRAD ALLEN DUNN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 14-0029X(A) IN THE 71ST DISTRICT COURT FROM HARRISON 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 entered an open plea of guilty to

murder, and was sentenced by a jury to ninety-nine years’ imprisonment. The Sixth Court of

Appeals affirmed his conviction. Dunn v. State, No. 06-15-00050-CR (Tex. App. — Texarkana,

March 9, 2016) (not designated for publication).

Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance

1 This Court has reviewed Applicant’s other grounds for review and finds them to be without merit. 2

because trial counsel retained an expert but failed to present any testimony from that expert or any

other expert at trial, presented testimony instead from unfavorable witnesses, failed to file a motion

for a change of venue, failed to present available evidence in the form of a video interview of

Applicant’s daughter and text messages showing that the victim was having an affair, failed to

present witnesses who could have testified to Applicant’s good character and as to his mental state

at the time of the offense, and failed to object to argument by the prosecutor and a jury instruction

that shifted the burden of proof to the defense.

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 claim of ineffective assistance of counsel. 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 copies of the plea documents,

the indictment, the jury charge, and a transcript of the punishment hearing. 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 3

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 must

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

Filed: December 20, 2017 Do not publish