McCreary, Walter Lee V

• Court: Court of Criminal Appeals of Texas
• Decided: September 30, 2020
• Docket: WR-91,723-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-91,723-01

EX PARTE WALTER LEE MCCREARY V, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1227912-A IN THE 178TH DISTRICT COURT FROM HARRIS COUNTY

Per curiam.

ORDER

Applicant was convicted of capital murder and sentenced to life imprisonment. The First

Court of Appeals affirmed his conviction. McCreary v. State, No. 01-10-01035-CR (Tex.

App.—Houston [1st Dist.] May 17, 2012) (not designated for publication). Applicant filed this

application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded

it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends, among other things, that appellate counsel failed to challenge the

sufficiency of the transfer order in his case. Applicant has alleged facts that, if true, might entitle

him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Moon v. State, 451 S.W.3d 28 (Tex.

Crim. App. 2014). Accordingly, the record should be developed. The trial court is the appropriate 2

forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order

appellate counsel to respond to Applicant’s ineffective assistance of counsel claim. In developing

the record, the trial court may use any means set out in Article 11.07, § 3(d). Applicant appears to

be represented by counsel. If he is not and trial court holds a hearing, it shall determine whether

Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court

shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If

counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s

name.

The trial court shall make findings of fact and conclusions of law as to whether appellate

counsel’s conduct was deficient and Applicant was prejudiced by her alleged deficient conduct. The

trial court may make any other findings and conclusions that it deems appropriate in response to

Applicant’s claims.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: September 30, 2020 Do not publish