Hill, Keith

• Court: Court of Criminal Appeals of Texas
• Decided: December 17, 2014
• Docket: WR-82,270-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,270-01

EX PARTE KEITH HILL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1103320 IN THE 337TH DISTRICT COURT FROM HARRIS 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 sexual

assault and sentenced to ninety-nine years’ imprisonment. The Fourteenth Court of Appeals

affirmed his conviction. Hill v. State, No. 14-08-00062-CR (Tex. App. — Houston [14th Dist.] July

21, 2009, pet. ref’d.).

Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance

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

during the punishment stage of trial, because counsel failed to object when a police detective testified

as to what he was told by a non-testifying complainant in one of the extraneous cases, and because

counsel failed to object to the introduction of evidence obtained from an apparently invalid search

of a computer hard drive taken from Applicant’s room.

The trial court has entered findings of fact and conclusions of law in this case, recommending

that relief be denied. However, those findings of fact and conclusions of law appear to be

contradictory. Specifically, the trial court finds that the jury should not have heard evidence of the

extraneous offense about which the complainant in that case did not testify, and finds that the State’s

case on punishment would have been less compelling without such evidence. The trial court also

finds that the search of the computer hard drive exceeded the scope of the consent to search given

by Applicant’s father, and that there was no warrant authorizing the search of the hard drive. The

trial court finds that the evidence found on the hard drive was inadmissible, and that no sound

strategy could justify trial counsel’s failure to object or seek to suppress this evidence. The trial

court finds that the State’s case on punishment would have been less compelling without the

testimony concerning the contents of the hard drive. Notwithstanding these findings, the trial court

finds that trial counsel’s performance was not deficient, and that Applicant was not prejudiced.

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

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

trial court shall file supplemental findings of fact and conclusions of law, reconciling the apparent

conflicts in the previously-submitted findings of fact and conclusions of law. The trial court shall 3

also make findings of fact as to who owned the computer that was seized during the search of

Applicant’s home. 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.

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: December 17, 2014 Do not publish