McDavid, Jarvis Dunk

• Court: Court of Criminal Appeals of Texas
• Decided: April 18, 2018
• Docket: WR-87,236-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-87,236-01

EX PARTE JARVIS DUNK MCDAVID, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D35700-CR IN THE 13TH DISTRICT COURT FROM NAVARRO 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 aggravated assault

and sentenced to fifteen years’ imprisonment. The Tenth Court of Appeals affirmed his conviction.

McDavid v. State, No. 10-15-00112-CR (Tex. App.—Waco Dec. 3, 2015) (not designated for

publication).

In his fourth ground, Applicant contends, among other things, that trial counsel failed to

investigate and contact his alibi witness. After we remanded this application, a sworn affidavit from

Michael Leaks was forwarded with the supplemental record. In his affidavit, Leaks says he was an 2

alibi witness.

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 that counsel failed to investigate and contact

his alibi witness. 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 him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

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

counsel was deficient for not investigating and contacting Leaks. The trial court shall also determine

whether Applicant was prejudiced. 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. 3

Filed: April 18, 2018

Do not publish.