Pearson, Donnie Ray

• Court: Court of Criminal Appeals of Texas
• Decided: November 6, 2019
• Docket: WR-90,524-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,524-01

EX PARTE DONNIE RAY PEARSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1286988-A IN THE 185TH DISTRICT COURT FROM HARRIS 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 super aggravated

sexual assault of a child and sentenced to life imprisonment. The Fourteenth Court of Appeals

affirmed his conviction. Pearson v. State, No. 14-11-00041-CR (Tex. App. Houston [14th Dist.] July

17, 2012) (not designated for publication).

Applicant contends that his trial counsel rendered ineffective assistance because trial counsel

failed to strike a venire member who indicated that she had been molested as a child, failed to object

when the prosecutor referred to Applicant as a “monster” multiple times during opening statements 2

and closing arguments, failed to pursue his single objection to the prosecutor’s reference to an

adverse ruling, elicited damaging testimony from the complainant’s mother and the lead detective,

failed to request a hearing or object when the State’s medical expert gave opinion testimony that was

not scientifically supportable, failed to request a hearing pursuant to Theus v. State, 845 S.W. 2d 874

(Tex. Crim. App. 1992) or object pursuant to Rule 609 of the Texas Rules of Evidence when the

State impeached Applicant using a misdemeanor assault conviction and a felony driving while

intoxicated conviction, and failed to secure funds or request appointment of a DNA expert for the

defense.

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).

Applicant’s trial counsel has submitted an affidavit responding to Applicant’s allegations, but the

trial court has not entered findings of fact and conclusions of law, and the habeas record is

insufficient to address the claims raised in the application. 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 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 first ensure that the habeas record is supplemented with a copy of the

trial transcripts and the clerk’s record. The district clerk shall certify that the habeas record contains 3

all documents filed by Applicant, including any memorandum or exhibits, and any other pleadings

or responses filed by either party. 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 performance prejudiced Applicant. 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: November 6, 2019 Do not publish