McRoy, Danny Leon

• Court: Court of Criminal Appeals of Texas
• Decided: November 20, 2019
• Docket: WR-90,384-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,384-01

EX PARTE DANNY LEON MCROY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 22,965-2016A IN THE 402ND DISTRICT COURT FROM WOOD 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 evading arrest

in a vehicle and sentenced to thirty-seven years’ imprisonment. The Twelfth Court of Appeals

affirmed his conviction. Mcroy v. State, 12-17-00131-CR (Tex. App.—Tyler May 23, 2018) (not

designated for publication).

Applicant contends, among other things, that his trial counsel rendered ineffective assistance

because he did not object to errors in the jury charge.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 2

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). In the

appropriate case, the trial court may rely on its personal recollection. Id.

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 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 make specific findings addressing whether

counsel was ineffective in not objecting to the parole law instruction and the lack of a burden of

proof instruction applicable to the deadly weapon finding. 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: November 20, 2019 Do not publish