Hartwell, Ross Allen

• Court: Court of Criminal Appeals of Texas
• Decided: November 14, 2018
• Docket: WR-88,980-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-88,980-01

EX PARTE ROSS ALLEN HARTWELL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D-1-DC-13-904031-A IN THE 390TH DISTRICT COURT FROM TRAVIS 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 aggravated

robbery and sentenced to sixty years’ imprisonment. After reversing and remanding for a new

punishment hearing, the Thirteenth Court of Appeals affirmed his conviction. Hartwell v. State, 476

S.W.3d 523 (Tex. App.—Corpus Christi-Edinburg 2015); Hartwell v. State, No. 13-17-00037-CR

(Tex. App.—Corpus Christi-Edinburg May 31, 2018) (not designated for publication).

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

because she did not strike or challenge a biased juror and did not correct Applicant’s co-defendant’s 2

allegedly false testimony. Applicant also alleges that the State did not disclose an agreement with

the co-defendant, who testified for the State and later pleaded guilty to a lesser offense.

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

466 U.S. 668 (1984); Giglio v. United States, 405 U.S. 150, 154 (1972). 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). 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 counsel was deficient and, if so, whether counsel’s deficient

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

State suppressed evidence that was exculpatory or could have been used for impeachment of

Applicant’s co-defendant. If the Court finds that favorable evidence was suppressed it shall make

findings detailing whether the evidence was material. 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 3

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 must

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

Filed: November 14, 2018 Do not publish