Johnson, Kenneth Wayne

• Court: Court of Criminal Appeals of Texas
• Decided: October 19, 2016
• Docket: WR-83,878-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,878-02

EX PARTE KENNETH WAYNE JOHNSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. C34800-CR IN THE COUNTY COURT AT LAW FROM NAVARRO COUNTY

Per curiam. ALCALA, J., concurs.

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 engaging in

organized criminal activity and sentenced to eighteen years’ imprisonment. He did not appeal his

conviction. Applicant’s initial habeas application (the -01) asked for a late appeal. Relief was denied.

Applicant has now filed a second habeas application (this -02) challenging the conviction. The

application is not barred as subsequent. TEX . CODE CRIM . PROC. art. 11.07 § 4; Ex parte McPherson,

32 S.W.3d 860, 861 (Tex. Crim. App. 2000). 2

Applicant raises many claims alleging that his trial counsel rendered ineffective assistance,

including the failure to notify of a plea agreement, to investigate, and to call witnesses at trial, and

it appears he claims counsel failed to impeach witness testimony with plea deals the witnesses had

made with the State. There is no affidavit from trial counsel or findings from the trial court.

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. The trial court

shall order trial 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).

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 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 3

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: October 19, 2016 Do not publish