Finch, John Bryan

• Court: Court of Criminal Appeals of Texas
• Decided: November 9, 2022
• Docket: WR-94,268-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,268-01

EX PARTE JOHN BRYAN FINCH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 16-07-0222-CRA-A IN THE 218TH DISTRICT COURT FROM ATASCOSA COUNTY

Per curiam.

ORDER

Applicant was convicted of murder and sentenced to seventy-two years and six months’

imprisonment. The Fourth Court of Appeals affirmed his conviction. Finch v. State, No. 04-18-

00414-CR (Tex. App. — San Antonio January 5, 2020) (not designated for publication). Applicant

filed this application for a writ of habeas corpus in the county of conviction, and the district clerk

forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends, among other things, that trial counsel was ineffective because counsel

failed to challenge or strike venire members who indicated that they could not be fair in this case,

failed to request a change of venue on the basis of pre-trial publicity, failed to request an accomplice-

witness instruction with regard to State’s witness Matthew Garcia, failed to object to extraneous bad 2

act evidence pursuant to Rule 403 of the Texas Rules of Evidence, and failed to object to the

introduction of unduly prejudicial photographs.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate

forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial

counsel to respond to Applicant’s claims. In developing the record, the trial court may use any

means set out in Article 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 wants to be represented by counsel, the

trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art.

26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of

counsel’s name.

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

performance was deficient and Applicant was prejudiced. The trial court may make any other

findings and conclusions that it deems appropriate in response to Applicant’s claims.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: November 9, 2022 Do not publish