French, Cody Darus

• Court: Court of Criminal Appeals of Texas
• Decided: February 24, 2021
• Docket: WR-92,083-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,083-01

EX PARTE CODY DARUS FRENCH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 10940-D IN THE 350TH DISTRICT COURT FROM TAYLOR COUNTY

Per curiam.

ORDER

Applicant was convicted of aggravated sexual assault and sentenced to sixty years’

imprisonment. The Eleventh Court of Appeals reversed the judgment of conviction and remanded

the case to the trial court. French v. State, 534 S.W.3d 693 (Tex. App.—Eastland 2017). We

reversed the judgment of the court of appeals and remanded the case to the court of appeals. French

v. State, 563 S.W.3d 228 (Tex. Crim. App. 2018). On remand, the court of appeals affirmed the

judgment of conviction. French v. State, No. 11-14-00284-CR (Tex. App.—Eastland July 25, 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. 2

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 shall order trial counsel to

respond to Applicant’s claim in ground three that counsel failed to advise him of his right to a jury

trial on punishment and to file a written election to have a jury decide punishment. 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.

In response to Applicant’s first ground, the trial court shall make further findings of fact and

conclusions of law as to whether trial counsel’s conduct was deficient and Applicant was prejudiced

under the standards set out in Strickland v. Washington.1 In response to Applicant’s third ground,

the trial court shall also determine whether counsel’s conduct was deficient and Applicant was

prejudiced. See Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018); State v. Recer, 815 S.W.2d

730, 731-32 (Tex. Crim. App. 1991). The trial court may make any other findings and conclusions

1 In its original findings of fact and conclusions of law, the trial court found that trial counsel’s “strategic reasons for not objecting to certain testimony, deciding not to cross-examine a witness, not filing a limine motion, not objecting to the jury instructions, and not objecting to the prosecutor’s closing arguments are plausible.” Strickland requires reviewing courts to determine whether counsel’s conduct fell below an objective standard of reasonableness and, if so, whether there is a reasonable probability that the result would have been different but for counsel’s deficient conduct. Strickland, 466 U.S. at 688–89, 694. 3

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: February 24, 2021 Do not publish