Montgomery, Shelton Wade

• Court: Court of Criminal Appeals of Texas
• Decided: June 24, 2015
• Docket: WR-83,375-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,375-01

EX PARTE SHELTON WADE MONTGOMERY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 4762A IN THE 100TH DISTRICT COURT FROM CARSON 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 two counts of

aggravated sexual assault and sentenced to imprisonment for twenty and twenty-five years. The

Seventh Court of Appeals affirmed his convictions. Montgomery v. State, 415 S.W.3d 580 (Tex.

App.—Amarillo 2013).

Applicant contends that trial counsel rendered ineffective assistance because, among other

things, he failed to investigate and present mitigation witnesses at the punishment hearing. 2

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. 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 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 findings of fact and conclusions of law as to whether counsel’s

conduct was deficient at the punishment hearing and 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 shall

be obtained from this Court.

Filed: June 24, 2015 Do not publish