Ervin, Frederick D.

• Court: Court of Criminal Appeals of Texas
• Decided: April 15, 2015
• Docket: WR-82,736-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,736-01

EX PARTE FREDERICK D. ERVIN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 9402JD-HC-1 IN THE 1-A DISTRICT COURT FROM JASPER 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 aggravated sexual

assault and sentenced to life imprisonment. He did not appeal his conviction.

Applicant contends that trial counsel rendered ineffective assistance. 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 2

to respond to Applicant’s ineffective assistance of counsel claims. 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.

The trial court shall make findings of fact and conclusions of law as to whether counsel’s

conduct was deficient and Applicant was prejudiced. The trial court shall also make findings and

conclusions as to whether Applicant’s claim is barred by the doctrine of laches. In doing so, the trial

court shall give Applicant an opportunity to respond and explain his delay. Ex parte Smith, 444

S.W.3d 661, 670 (Tex. Crim. App. 2014). The trial court shall also make any other findings and

conclusions that it deems relevant and appropriate to the disposition of Applicant’s claims 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: April 15, 2015 Do not publish