Kim, Chung

• Court: Court of Criminal Appeals of Texas
• Decided: November 11, 2015
• Docket: WR-83,901-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,901-01

EX PARTE CHUNG KIM, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W13-52168-U(A) IN THE 291ST DISTRICT COURT 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 capital murder

and sentenced to imprisonment for life without parole. The Fifth Court of Appeals affirmed his

conviction. Kim v. State, No. 05-14-00138-CR (Tex. App.—Dallas Apr. 29, 2015) (not designated

for publication).

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

because did not request or provide a translator. 2

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Cockrell, 424 S.W.3d 543 (Tex. Crim. App. 2014). 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 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.

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. Ex parte Cockrell, 424 S.W.3d 543, 554–57 (Tex. Crim. App.

2014). The trial court shall make specific findings of fact addressing Applicant’s claims that the

language barrier prevented him from telling his side of the story, and whether he understood the

proceedings against him. 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 shall

be obtained from this Court.

Filed: November 11, 2015 Do not publish