Gerhardt, Ray Daniel

• Court: Court of Criminal Appeals of Texas
• Decided: November 9, 2022
• Docket: WR-32,805-06
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-32,805-06

EX PARTE RAY DANIEL GERHARDT, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. A20941-1810-W2 IN THE 64TH DISTRICT COURT FROM HALE COUNTY

Per curiam.

ORDER

Applicant was convicted of burglary of a habitation and sentenced to 45 years’ imprisonment.

The Seventh Court of Appeals affirmed his conviction. Gerhardt v. State, No. 07-20-00054-CR

(Tex. App.—Amarillo, Nov. 10, 2020). 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 that trial counsel was ineffective for failing to investigate and call

witnesses. Specifically, counsel failed to: investigate a conversation that Applicant’s brother had

with the investigating officer on the day of the offense; investigate evidence that exculpated

Applicant’s brother; and contact Applicant’s brother and a private investigator who interviewed 2

Applicant and his brother. Applicant contends that, because counsel failed to investigate, Applicant

had to testify to explain his presence near the burglarized house, and his brother and the private

investigator never testified. Applicant also contends that, when Applicant testified, trial counsel

failed to request a limiting instruction concerning Applicant’s criminal history. As a result, Applicant

avers, he felt compelled to volunteer his criminal history.

The writ record contains no details concerning the extent of defense counsel’s investigating

and contacting witnesses, or whether or why counsel called Applicant to testify without requesting

a limiting instruction concerning extraneous offenses.

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 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.

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 3

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