Lovett, Lamar

• Court: Court of Criminal Appeals of Texas
• Decided: November 19, 2014
• Docket: WR-76,670-06
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-76,670-06

EX PARTE LAMAR LOVETT, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D-1-DC-10-904094-C IN THE 299TH DISTRICT COURT FROM TRAVIS 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 one count of

attempted capital murder, one count of aggravated assault, and two counts of aggravated sexual

assault. He was sentenced to seventy, twenty, and fifty years’ imprisonment respectively. The Third

Court of Appeals affirmed his conviction. Lovett v. State, 03-10-00865-CR (Tex. App.–Austin Aug.

1, 2012).

Applicant contends, among other things, that his conviction for aggravated assault violates 2

the double jeopardy clause of the Constitution and that his trial counsel rendered ineffective

assistance by failing to investigate and present evidence of his mental health issues. After this Court

received the application, the trial court signed an order designating issues. It appears that the trial

court needs more time to investigate and enter findings regarding Applicant’s claims.

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 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).

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 Applicant’s conviction for both

attempted capital murder and aggravated assault were based on the same actions and violate the

double jeopardy clause of the Constitution. The trial court shall make findings as to whether

Applicant’s counsel investigated Applicant’s mental health history and whether he had any reason

to believe that it would benefit Applicant to request a competency examination prior to trial. 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. 3

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 shall

be obtained from this Court.

Filed: November 19, 2014 Do not publish