Mitchell, Darrell Boyd

• Court: Court of Criminal Appeals of Texas
• Decided: May 15, 2019
• Docket: WR-89,237-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,237-02

EX PARTE DARRELL BOYD MITCHELL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W15-75208-I (A) IN THE CRIMINAL DISTRICT COURT NO. 2 FROM DALLAS 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 assault with

family violence by impeding breath or circulation, and was sentenced to sixty years’ imprisonment.

The Fifth Court of Appeals affirmed his conviction. Mitchell v. State, No. 05-16-01152-CR (Tex.

App. — Dallas July 18, 2017) (not designated for publication).

Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance

1 This Court has reviewed Applicant’s other claims and finds them to be without merit. 2

because counsel failed to make proper objections, failed to adequately consult with Applicant, failed

to secure witnesses, medical records and video evidence, failed to discuss the State’s evidence with

Applicant, failed to independently investigate the facts and the State’s witnesses and evidence, failed

to present a defense of self-defense, failed to obtain the complainant’s prior medical records, failed

to consult with an expert in radiology, failed to present evidence of jail phone calls in which the

complainant admitted to initiating the incident, failed to present evidence of the complainant’s

pattern of making assault complaints against people when she was angry, failed to impeach a State’s

witness with a history of prior convictions, and failed to challenge the indictment. Applicant also

alleges that both trial and appellate counsel refused to provide Applicant with copies of his files

when requested.

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 claims 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 3

performance prejudiced Applicant. The trial court shall also make findings as to whether Applicant

requested copies of his files from trial and appellate counsel, and if so, whether such copies were

provided to him. 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.

Filed: May 15, 2019 Do not publish