Koss, Lawrence Anthony

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,480-01

EX PARTE LAWRENCE ANTHONY KOSS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W-1341780-S (A) IN THE 195TH 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 entered an open plea of guilty to

the offense of injury to a child, and was sentenced to imprisonment for forty years.

On February 13, 2019, this Court remanded this matter to the trial court for affidavits and

findings regarding Applicant’s claim that he received ineffective assistance of trial counsel.

Applicant alleges that his trial counsel was ineffective for failing to object or request a continuance

when the State introduced a Community Supervision and Corrections Department Comprehensive

Assessment and Treatment Services Report (a “CATS” report) that it received on the second day of the punishment hearing. The CATS report, prepared by a licensed professional counselor who had

interviewed Applicant, apparently contained some favorable information regarding Applicant’s

likelihood of complying with terms of community supervision and his low risk of re-offending.

However, the report also apparently contained information regarding “a pattern of animal cruelty

from childhood to the present” and a report by Applicant that he “thought about knocking some

boxes over in the shipping department to kill a man who had been sexually harassing a friend.” In

addition, the report indicated that Applicant reported having been treated by a psychologist for many

years and having been diagnosed with Attention Deficit Hyperactivity Disorder. The licensed

professional counsel apparently stated her opinion that Applicant’s behavior was more consistent

with a diagnosis of Conduct Disorder “that ripened into antisocial personality disorder in adulthood”

than with a diagnosis of Attention Deficit Hyperactivity Disorder.

Applicant alleges that trial counsel should have objected and moved for a continuance so that

the information contained in the CATS report could be investigated. In addition, Applicant alleges

that the defense could have brought the licensed professional counselor into court and questioned

her regarding her qualifications to make the statements regarding Applicant’s possible diagnosis.

Applicant also alleges that trial counsel was ineffective for failing to present evidence of his mental

health history and diagnosis at the punishment hearing. Even if Applicant did not tell trial counsel

about his mental health history before the punishment hearing, the information contained in the

CATS report should have put trial counsel on notice that there might be issues regarding Applicant’s

mental health history.

On remand, Applicant’s trial counsel submitted an affidavit in which he stated only that his

usual practice is to “investigate any issues” and to defend his client “according to his or her decisions

on how to proceed in his or her particular case.” Trial counsel stated that he has no reason to believe that he deviated from his usual practice in this case. Trial counsel’s affidavit does not respond

specifically to any of Applicant’s allegations.

The trial court has entered findings of fact and conclusions of law, describing a number of

possible strategic reasons why trial counsel may not have objected to the introduction of the CATS

report, and why he may not have wanted to call the licensed professional counselor to testify. The

trial court’s findings with regard to trial counsel’s possible rationales are not supported by the record.

Applicant has alleged facts that, if true, might entitle 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 more specifically to Applicant’s claims of ineffective assistance

of counsel. Trial counsel shall state whether he was aware of Applicant’s mental health history and

diagnosis, and if so, whether he considered introducing evidence of Applicant’s mental health history

in mitigation of punishment. Trial counsel shall state when the CATS report was first produced by

the State, and whether trial counsel had an opportunity to review the report with Applicant. Trial

counsel shall state whether he believed that the CATS report contained information that was

favorable or unfavorable to the defense, or both. Trial counsel shall state why he did not request a

continuance in order to investigate the contents of the CATS report and in order to investigate the

qualifications of the author of the report. 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 first supplement the habeas record with a copy of the CATS report and

a transcript of the punishment proceedings in this case. 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

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: July 3, 2019 Do not publish