Head, Phillip

• Court: Court of Criminal Appeals of Texas
• Decided: January 11, 2012
• Docket: WR-76,638-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-76,638-01 and 02 EX PARTE PHILLIP LEE HEAD, Applicant

ON APPLICATIONS FOR WRIT OF HABEAS CORPUS

CAUSE NOS. 04-CR1668 and 06-CR0955 IN THE 212th DISTRICT COURT

FROM GALVESTON 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 these applications for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of misapplication of fiduciary property and securities fraud and he was sentenced to twenty-five years' and thirty-two years' imprisonment, respectively. The Fourteenth Court of Appeals affirmed his convictions. Head v. State, Nos. 14-07-00855-CR and 14-07-00856-CR (Tex. App.-Houston [14^th Dist.] delivered September 30, 2009, pet. ref'd).

Applicant has raised numerous, detailed allegations that both his trial counsel and his appellate counsel rendered ineffective assistance in these cases. In response to these claims, the trial court has entered findings of fact and conclusions of law that state, in their entirety, the following:

This Trial Court finds that there is no necessity for a fact finding hearing because there is ample evidence from the Trial Attorney's affidavit (attached), the Appellate Attorney's affidavit (attached), and the Trial Court's record to rule on the relief sought. This Trial Court further finds that the representations contained in the State' Answer and said affidavit are correct, that no controverted previously unresolved facts or issues exist which would entitle Applicant to relief, and that Applicant's claim has no legal merit. This Trial Court recommends that relief be denied.

However, the trial court's findings of fact and conclusions of law are not supported by the record before this Court. First, several discrepancies in trial counsel's affidavit are highlighted by the detailed response filed by the Applicant and these discrepancies are not addressed by the trial court. Second, appellate counsel's affidavit does not specifically address any of the grounds raised by the Applicant. And last, the State's response is a general denial that does not address the merits of the issues raised by the Applicant.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (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 shall provide Applicant's trial counsel with the opportunity 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.

It appears from the record that Applicant is currently represented by counsel. However, if that is no longer the case and 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 additional, detailed findings of fact as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make additional, detailed findings of fact as to whether the performance of Applicant's appellate 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 claim for habeas corpus relief.

These applications 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: January 11, 2012

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