Guild, Lakim Mintrell

• Court: Court of Criminal Appeals of Texas
• Decided: January 28, 2015
• Docket: WR-82,609-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,609-01

EX PARTE LAKIM MINTRELL GUILD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 11-5-8612 A IN THE 24TH DISTRICT COURT FROM JACKSON 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 assault with

family violence and sentenced to fifty years’ imprisonment. The Thirteenth Court of Appeals

affirmed his conviction. Guild v. State, No. 13-12-00175-CR (Tex. App. – Corpus Christi, August

20, 2013, no pet.).

Applicant contends, among other things,1 that his trial and appellate counsel rendered

ineffective assistance for various reasons. Applicant was represented by the same attorney at trial

1 This Court has reviewed Applicant’s other claims, and finds them to be without merit. 2

and on direct appeal. Applicant alleges that counsel was ineffective at trial because counsel did not

object when it was learned that the complainant’s aunt had served on the grand jury that returned the

indictment in this case. Applicant also alleges that counsel did not object to the State’s use of steak

knives that had not been seized from Applicant or otherwise connected to Applicant as

demonstrative exhibits. Applicant alleges that counsel did not advise him that a sixteen-year plea

offer which he had previously rejected had been extended until just before trial. Applicant also

alleges that counsel was ineffective for failing to rebut the State’s proffered race-neutral reason for

striking the only African-American venire member. He alleges that counsel should have moved for

a directed verdict or argued for self-defense when the complainant testified that she had hit

Applicant.

With respect to counsel’s performance on direct appeal, Applicant alleges that counsel

advised him in a letter eighteen days after the court of appeals had affirmed his conviction that

counsel needed to do some research to determine whether he would file a petition for discretionary

review on Applicant’s behalf. Applicant alleges that counsel advised him that if he were to file a pro

se petition for discretionary review, such a petition would nullify a petition filed by counsel, and the

court would only consider the pro se petition. Applicant alleges that he waited to hear from counsel,

but that counsel did not advise him whether or not he was filing a petition for discretionary review

on his behalf until it was too late to file a pro se petition. No petition for discretionary review was

filed in this case, and the court of appeals’ docket does not show that appellate counsel filed a letter

certifying compliance with Texas Rule of Appellate Procedure 48.4.

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 3

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

shall order counsel to respond to Applicant’s claims of ineffective assistance of trial and appellate

counsel.

Specifically, counsel shall state whether he learned that the complainant’s aunt had served

on the grand jury that returned the indictment in this case, and if so, when this information was

discovered and why he did not lodge an objection.

Counsel shall state whether the defense was provided with notice that the State intended to

seek an affirmative deadly weapon finding, as no deadly weapon was alleged in the indictment.

Counsel shall state whether he objected to the use of steak knives as demonstrative exhibits.

Counsel shall state whether he communicated any and all plea offers to Applicant, whether

Applicant accepted or rejected any such offers, and whether any offers were extended until just

before trial.

Counsel shall state why he did not try to rebut the State’s proffered race-neutral reason for

striking the only African-American venire member, which appears to have been based solely on the

venire member’s not-uncommon last name.

Counsel shall state whether self-defense was ever a theory explored or considered as a

defense in this case, and whether the complainant testified that she had hit Applicant, thereby raising

the possibility of self-defense.

Finally, counsel shall state whether he timely advised Applicant that his conviction had been

affirmed on direct appeal, and of his right to file a pro se petition for discretionary review. Counsel

shall state whether he advised Applicant to wait until he had researched the possibility of filing a

petition for discretionary review on Applicant’s behalf, and if so, whether he advised Applicant that

he did not intend to file such a petition, and when. 4

The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d). In

the appropriate case, the trial court may rely on its personal recollection. Id. 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 and appellate counsel was deficient and, if so, whether counsel’s

deficient performance prejudiced Applicant. The trial court shall also make findings as to whether

Applicant was denied his opportunity to petition this Court for discretionary review due to the

deficient advice of counsel. 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

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 shall

be obtained from this Court.

Filed: January 28, 2015 Do not publish