Montgomery, Benny Lee

• Court: Court of Criminal Appeals of Texas
• Decided: October 9, 2013
• Docket: WR-80,097-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-80,097-01

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EX PARTE BENNY LEE MONTGOMERY, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. CR34858 IN THE 238^TH DISTRICT COURT

FROM MIDLAND COUNTY

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            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 possession of cocaine and sentenced to twenty years’ imprisonment. The Eleventh Court of Appeals affirmed his conviction. Montgomery v. State, No. 11-09-00253-CR (Tex. App.—Eastland Nov. 18, 2010) (unpublished).

            Applicant contends that his appellate counsel rendered ineffective assistance because counsel first told him he would pursue discretionary review, but did not advise him that he later decided not to file a petition for discretionary review as a matter of strategy.

            The trial court made findings of fact and conclusions of law, deciding that counsel was not ineffective because his decision not to pursue discretionary review was strategic. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). In these circumstances, additional facts are needed. Pursuant to 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 appellate counsel to respond to Applicant’s claim of ineffective assistance of counsel on appeal. 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 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 Applicant’s appellate counsel advised Applicant of his strategy before forfeiting Applicant’s right to pursue discretionary review. 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 shall be obtained from this Court.

Filed: October 9, 2013

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