Henley, Ben Lee

• Court: Court of Criminal Appeals of Texas
• Decided: January 28, 2015
• Docket: WR-82,577-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,577-01

EX PARTE BEN LEE HENLEY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W11-61328-L(A) IN CRIMINAL DISTRICT COURT NO. 5 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 unlawful

possession of a firearm and sentenced to five years’ imprisonment. The Fifth Court of Appeals

affirmed his conviction. Henley v. State, No. 05-13-00053-CR (Tex. App.—Dallas June 5, 2013)

(not designated for publication).

Applicant contends, among other things, that counsel rendered ineffective assistance. On

June 10, 2014, the trial court entered a timely order designating issues. Applicant has alleged facts

that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte 2

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 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 and conclusions of law in response to Applicant’s

claims. 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