Foster, Darwin Bernard

• Court: Court of Criminal Appeals of Texas
• Decided: May 26, 2021
• Docket: WR-92,665-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,665-01

EX PARTE DARWIN FOSTER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1499428 IN THE 183RD DISTRICT COURT FROM HARRIS COUNTY

Per curiam.

ORDER

Applicant was convicted of continuous sexual abuse of child and sentenced to life years’

imprisonment. The First Court of Appeals affirmed his conviction. Foster v. State, No. 01-18-

00006-CR (Tex. App.—Houston [1st] April 11, 2019)(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. 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 has ordered trial counsel to 2

respond. We remand this application to the trial court to complete its evidentiary investigation and

make findings of fact and conclusions of law.

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: May 26, 2021 Do not publish