Payten, Albert Cloyd

• Court: Court of Criminal Appeals of Texas
• Decided: October 5, 2016
• Docket: WR-85,217-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-85,217-02

EX PARTE ALBERT CLOYD PAYTEN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 55781-C-2 IN THE 89TH DISTRICT COURT FROM WICHITA 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 robbery and sentenced to fifteen years’ imprisonment on each count. He did not appeal

his convictions.

Applicant contends, among other things, that trial counsel failed to investigate and present

a “non-prosecution statement.” 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 2

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 claim. 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 him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

After reviewing counsel’s response, the trial court shall make findings of fact and conclusions

of law as to whether counsel’s conduct was deficient and, if so, Applicant would have insisted on

a trial and pleaded not guilty but for counsel’s deficient conduct. 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: October 5, 2016 Do not publish