Proctor, Tyler Allen

• Court: Court of Criminal Appeals of Texas
• Decided: October 25, 2017
• Docket: WR-87,495-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-87,495-01

EX PARTE TYLER ALLEN PROCTOR, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 14CR1850-83-1 IN THE 405TH DISTRICT COURT FROM GALVESTON 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 possession of a

controlled substance with intent to deliver and sentenced to sixty years’ imprisonment. The

Fourteenth Court of Appeals affirmed his conviction. Proctor v. State, No. 14-15-00592-CR (Tex.

App.—Houston [14th Dist.] Aug. 25, 2016)(not designated for publication).

Applicant contends that his trial counsel rendered ineffective assistance because counsel

(1) improperly objected to the admission of law enforcement’s videotaped search of the scene,

thereby excluding exculpatory evidence from jurors; (2) refused to communicate with Applicant’s 2

family who was trying to contact counsel concerning the confession of Applicant’s co-defendant;

(3) refused to call William Bernard Gilmore, Jr., who would have testified that the drugs belonged

to him and Applicant was not aware that the drugs were in the apartment; (4) failed to object to the

prosecutor’s statement that “we would not be here at trial if somebody had owned up to having the

drugs,” when in fact, a co-defendant had confessed to having the drugs a week before Applicant’s

trial; and, (5) failed to request an accomplice witness instruction in accordance with section 38.14

of the Texas Code of Criminal Procedure.

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. Trial counsel

has filed an affidavit. However, the affidavit received by this Court does not address Applicant’s

specific allegations. Therefore, the trial court shall order trial counsel to respond to Applicant’s

specific claims of ineffective assistance of counsel. 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 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 3

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 25, 2017 Do not publish