Lavender, James Robert III

• Court: Court of Criminal Appeals of Texas
• Decided: April 29, 2009
• Docket: WR-71,533-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-71,533-01 EX PARTE JAMES ROBERT LAVENDER, III, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 41,095 A IN THE 268TH DISTRICT COURT

FROM FORT BEND 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 was convicted of possession of a controlled substance and sentenced to forty (40) years' imprisonment. The Fourteenth Court of Appeals affirmed his conviction. See Lavender v. State, No. 14-06-0119-CR (Tex. App. - Houston [14^th Dist.], no pet.) ( not designated for publication.)

Applicant contends that his trial counsel rendered ineffective assistance because counsel advised him to reject the State's plea offers of two (2) years' confinement, eight (8) years' probation, and six (6) years' confinement which were made pre-trial. Applicant alleges that counsel told him that he would prevail if he pleaded not guilty and went to trial as there was no link between him and the drugs. Applicant alleges that he was surprised to learn that counsel was conceding his guilt when he listened to counsel's opening statement. Applicant alleges that he was prejudiced by counsel's deficient performance as the jury sentenced him to forty (40) years' confinement which was a much lengthier sentence than the State offered pre-trial. Applicant alleges that counsel rendered ineffective assistance in the guilt phase as he stipulated to evidence instead of trying to contest the State's case. Also, Applicant alleges that counsel rendered ineffective assistance at the hearing on the motion to suppress as counsel failed to preserve errors regarding the illegal search and seizure in this case. Applicant alleges that the search was illegal because it exceeded the scope of the written consent form. Applicant alleges that counsel should have argued that Applicant had standing to contest the search. Applicant alleges that he was prejudiced by counsel's inaction as the search and seizure issues were not preserved for appellate review. Applicant contends that counsel rendered ineffective assistance as he failed to file a motion for a speedy trial even though Applicant asked him to file such a motion. Applicant alleges that he was prejudiced by counsel's omission as the delay allowed the State to re-indict him with a more serious offense than he was initially charged with. Finally, Applicant alleges that counsel was ineffective for failing to file a motion for a new trial.

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) to resolve the fact issues. In the appropriate case, the trial court may rely on its personal recollection. Id.

The trial court shall order Applicant's trial counsel to file a supplemental affidavit addressing the following: (1) whether counsel advised Applicant to accept the State's plea offers of two (2) years' confinement, eight (8) years' probation and six (6) years' confinement which were made pre-trial and, if so, when counsel advised Applicant to accept said plea offers; (2) whether counsel advised Applicant that he would prevail if he went to trial as there was no link between him and the drugs and, if so, when counsel gave Applicant the aforementioned advise; (3) whether counsel made a strategic decision to concede guilt in his opening statement and, if so, when counsel advised Applicant of the aforementioned strategic decision; (4) whether counsel stipulated to the State's evidence in the guilt phase and if so, shall identify the strategic reason for counsel's decision to stipulate; (5) whether counsel believed that the search was illegal in this case and, if so, shall detail the basis for counsel's belief; (6) whether counsel believed that the search exceeded the scope of the written consent form and, if so, shall detail the basis for counsel's belief; (7) whether counsel believed that Applicant had standing to contest the search and, if so, shall detail the basis for counsel's belief; (8) whether counsel tried to preserve errors for appellate review at the suppression hearing and, if so, shall identify the errors which were preserved; (9) whether counsel believed that the delay in this case was uncommonly long and prejudicial and, if so, shall detail the basis for counsel's belief; (10) whether counsel filed a motion for a speedy trial and, if not, why counsel did not believe such a motion was necessary; and, (11) whether counsel filed a motion for a new trial and, if not, why counsel did not believe such a motion was necessary.

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 as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. Specifically, the trial court shall make findings of fact as to whether counsel advised Applicant to accept the State's plea offers of two (2) years' confinement, eight (8) years' probation and six (6) years' confinement which were made pre-trial and, if so, when counsel advised Applicant to accept said plea offers. The trial court shall make findings of fact as to whether counsel advised Applicant that he would prevail if he went to trial as there was no link between him and the drugs and, if so, when counsel gave Applicant the aforementioned advise. The trial court shall make findings of fact as to whether counsel made a strategic decision to concede guilt in his opening statement and, if so, when counsel advised Applicant of the aforementioned strategic decision. The trial court shall make findings of fact as to whether counsel stipulated to the State's evidence in the guilt phase and, if so, shall identify the strategic reason for counsel's decision to stipulate. The trial court shall make findings of fact as to whether counsel believed that the search was illegal in this case and, if so, shall detail the basis for counsel's belief. The trial court shall make findings of fact as to whether counsel believed that the search exceeded the scope of the written consent form and, if so, shall detail the basis for counsel's belief. The trial court shall make findings of fact as to whether counsel believed that Applicant had standing to contest the search and, if so, shall detail the basis for counsel's belief. The trial court shall make findings of fact as to whether counsel tried to preserve errors for appellate review at the suppression hearing and, if so, shall identify the errors which were preserved. The trial court shall make findings of fact as to whether counsel believed that the delay in this case was uncommonly long and prejudicial and, if so, shall detail the basis for counsel's belief. The trial court shall make findings of fact as to whether counsel filed a motion for a speedy trial and, if not, why counsel did not believe such a motion was necessary. The trial court shall make findings of fact as to whether counsel filed a motion for a new trial and, if not, why counsel did not believe such a motion was necessary. 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 a copy of the court reporter's notes from trial and the pre-trial suppression hearing, all affidavits and interrogatories, 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: April 29, 2009

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