Foster, Sean Jeffrey

• Court: Court of Criminal Appeals of Texas
• Decided: September 16, 2020
• Docket: WR-91,683-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-91,683-01

EX PARTE SEAN JEFFREY FOSTER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2015-102-C2A IN THE 54TH DISTRICT COURT FROM MCLENNAN COUNTY

Per curiam.

ORDER

Applicant was convicted of one count of burglary of a habitation, three counts of indecency

with a child by contact, and one count of indecency with a child by exposure. He was sentenced to

thirty years’ imprisonment for the burglary count, fifteen years’ imprisonment for each of the

indecency by contact counts, and ten years’ imprisonment for the indecency by exposure count. The

trial court ordered the sentences for each of the indecency with a child counts to run consecutively

with each other, and concurrent with the sentence for the burglary count. After granting Applicant’s

motion to sever the appeal in the burglary count from the appeal in the other counts, the Tenth Court

of Appeals affirmed his convictions. Foster v. State, No. 10-17-00188-CR (Tex. App. — Waco

Sept. 13, 2017) (not designated for publication); Foster v. State, 530 S.W.3d 308 (Tex. App. — 2

Waco 2017) (pet. ref’d). 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,1 that trial counsel was ineffective because counsel

failed to adequately investigate a prior false accusation by the complainant that she had been

assaulted by a classmate, failed to properly cross-examine and impeach the complainant using this

and other information, and failed to present favorable testimony from three witnesses. 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. Specifically, trial counsel shall state whether he investigated the

previous accusations by the complainant against a classmate, and whether he believed that evidence

of the accusations would be admissible at trial. Trial counsel shall also state whether he considered

impeaching the complainant with evidence about her suicide attempt, admissions to her therapist,

and bullying behavior in school. Finally, trial counsel shall state whether he was aware of potential

witnesses Beate Willis, Carl Sprinkles, and Stacie Conte. If counsel was aware of those potential

witnesses, he shall state why he elected not to call them to testify at trial.

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

1 This Court has reviewed Applicant’s other grounds and finds them to be without merit. 3

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: September 16, 2020 Do not publish