Green, Timothy

• Court: Court of Criminal Appeals of Texas
• Decided: February 27, 2019
• Docket: WR-89,518-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,518-01

EX PARTE TIMOTHY GREEN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W15-75395-W(A) IN THE 363RD DISTRICT COURT FROM DALLAS COUNTY

Per curiam.

ORDER

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and

sentenced to life imprisonment. The Fifth Court of Appeals affirmed his conviction. Green v. State,

No. 05-16-00765-CR (Tex. App.—Dallas May 23, 2017)(not designated for publication).

Applicant contends, among other things, that his trial counsel rendered ineffective assistance

by failing to move to suppress the confession, failing to investigate the facts of the case, failing to

obtain Applicant’s medical records to show that he had a mental breakdown just prior to this

incident, and failing to interview witness Demond Lee Clark. He also contends that the State 2

withheld favorable evidence from the defense, specifically that Clark would have testified that

Applicant was not involved in his kidnapping (according to Applicant an extraneous offense brought

up during sentencing) and that he was never afraid of Applicant.

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

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these

circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294

(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court

shall order trial counsel to respond to Applicant’s claim of ineffective assistance of counsel. The

trial court may use any means set out in TEX . CODE CRIM . PROC. art. 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 wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether the

performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient

performance prejudiced Applicant. The trial court shall also make findings regarding whether

witness Clark informed the State that Applicant was not involved in his kidnapping and if so,

whether the State informed the defense of that statement. The trial court shall also make any other

findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of

Applicant’s claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental transcript containing all

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or 3

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time must

be requested by the trial court and shall be obtained from this Court.

Filed: February 27, 2019 Do not publish