Harris, David Glenn

• Court: Court of Criminal Appeals of Texas
• Decided: February 11, 2009
• Docket: WR-68,907-06
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-68,907-06 EX PARTE DAVID GLENN HARRIS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 20020D05384 IN THE 346^TH DISTRICT COURT

FROM EL PASO COUNTY

Per curiam.

O R D E R

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 aggravated assault of a child and sentenced to life imprisonment. The Eighth Court of Appeals affirmed his conviction. Harris v. State, No. 08-04-00143-CR (Tex. App.-El Paso, Aug. 31, 2005, pet. ref'd).

Applicant contends, among other things, that trial counsel rendered ineffective assistance because he failed to request a competency evaluation and to object that the State did not comply with the notice requirements in Tex. Code Crim. Proc. art. 38.072. Applicant also contends that trial counsel erroneously advised him that the trial judge would not sentence him to life.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 may order Applicant's trial counsel to respond to Applicant's claims of ineffective assistance of counsel. 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to: (1) what evidence indicated at trial that Applicant was not competent; (2) whether the State complied with the notice requirements in Tex. Code Crim. Proc. art. 38.072; (3) whether trial counsel believed the trial judge would not sentence Applicant to life based on the trial judge's contention that the State should have alleged the punishment enhancements in the indictment; (4) whether Applicant ever intended to plead guilty pursuant to a plea bargain; and (5) whether the State made or ever intended to make a plea offer. (If the trial court finds that the State complied with Article 38.072, it shall forward evidence of the State's compliance with the supplemental record.) The trial court shall then determine 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 any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claims 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: February 11, 2009

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