Hilliard, Deissac Lavar

• Court: Court of Criminal Appeals of Texas
• Decided: February 11, 2009
• Docket: WR-71,250-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-71,250-01 EX PARTE DEISSAC LAVAR HILLIARD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F03-32061-MT IN THE 194^TH JUDICIAL DISTRICT COURT

FROM DALLAS 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to aggravated sexual assault of a child, and was sentenced to sixty years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Hilliard v. State, No. 05-06-01243-CR (Tex. App. - Dallas, December 7, 2007, no pet.)

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to request a hearing or properly object to the determination that Applicant was competent to stand trial, after having been previously found incompetent by mental-health professionals and by a jury. Counsel has provided an affidavit in which he indicates that Applicant's incompetency was a result of mental retardation, rather than mental illness. However, the habeas record contains neither the reports of the mental-health professionals who evaluated Applicant and found him to be incompetent, nor the reports of the professionals who later determined that he had been restored to competency.

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 use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).

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 supplement the habeas record with copies of all reports detailing the competence evaluations and determinations made by the mental-health professionals in this case, including I.Q. scores, if any are known to exist. The trial court shall make findings of fact as to whether Applicant's incompetence was based on mental illness, mental retardation, or both. The trial court shall also make findings 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 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. 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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