Moulton, David Len

• Court: Court of Criminal Appeals of Texas
• Decided: December 17, 2014
• Docket: WR-81,718-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-81,718-01

EX PARTE DAVID LEN MOULTON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2008F00339-A IN THE 5TH DISTRICT COURT FROM CASS 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 murder and

sentenced to sixty years’ imprisonment. The Sixth Court of Appeals reversed the judgment of

conviction. Moulton v. State, 360 S.W.3d 540 (Tex. App.—Texarkana 2011). We reversed the

judgment of the court of appeals. Moulton v. State, 395 S.W.3d 804 (Tex. Crim. App. 2013).

Applicant now contends, among other things, that trial counsel failed to object on

Confrontation Clause grounds when affidavits the medical examiner relied on were read to the jury,

request a limiting instruction after the affidavits were read to the jury, and request a continuance after 2

the State disclosed the affidavits during trial. The trial court made findings of fact and conclusions

of law and recommended that we deny relief. We believe that the record is no adequate to resolve

Applicant’s claims.

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 the above claims. The trial court may use any means set out

in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

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.

After reviewing counsel’s response, the trial court shall determine whether counsel’s conduct

was deficient 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 3

be obtained from this Court.

Filed: December 17, 2014 Do not publish