McGruder, James Edward

• Court: Court of Criminal Appeals of Texas
• Decided: September 12, 2007
• Docket: WR-67,571-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-67,571-01 EX PARTE JAMES EDWARD MCGRUDER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. CR2004-110 IN THE 22^ND DISTRICT COURT

FROM COMAL 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of unlawful possession of a firearm and sentenced to sixty years' imprisonment. The Third Court of Appeals affirmed his conviction. McGruder v. State, No. 03-04-00265-CR (Tex. App.-Austin, delivered December 2, 2004, pet. ref'd).

Applicant contends, among other things, that his trial counsel rendered ineffective assistance because he described Applicant as a felon during closing arguments and failed to request instructions on mistake and necessity, and to object when the State improperly impeached Elizabeth Rocke.

Without entering findings of fact, the trial court recommended that we deny Applicant's claims. We believe, however, that 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. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall accordingly provide trial counsel with a second opportunity to respond to Applicant's claims, specifically, the claim that counsel failed to object to the State's impeachment of Rocke. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

Applicant appears to be represented by counsel. If he is not and 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 then make findings of fact 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 forward a copy of the reporter's record to this Court. The trial court shall 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 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed:

September 12, 2007

Do not publish