Robinson, Sherman

• Court: Court of Criminal Appeals of Texas
• Decided: June 26, 2019
• Docket: WR-89,938-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,938-01

EX PARTE SHERMAN ROBINSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2015CR5888-W1 IN THE 187TH DISTRICT COURT FROM BEXAR 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 a felon in

possession of a firearm and sentenced to ninety-nine (99) years’ imprisonment. The Fourth Court

of Appeals affirmed his conviction. Robinson v. State, No. 04-16-00309-CR, 2017, at *1 (Tex. App.

— San Antonio June 14, 2017) (not designated for publication).

Applicant contends, among other things, that his trial counsel rendered ineffective assistance

by not preparing for trial, by not investigating and objecting to the enhancements, by advising him

to plead true to bad enhancements, by failing to obtain a ruling on his motion to suppress, and by 2

failing to object to false testimony. He also alleges that the enhancements used in his case were not

eligible to be used against him.

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 claims of ineffective assistance of counsel,

specifically addressing if he conducted any investigation in confirming the eligibility of the

enhancement allegations, and if so, what led to his determination that they were valid. 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 supplemental findings of fact and conclusions of law as to: 1) the

merits of Applicant’s suppression argument and whether, had the court denied the motion to

suppress, it would have committed error; 2) whether the enhancement allegations were eligible to

be used, and if not, were there alternative convictions that could have been used; 3) whether the

police officer’s testimony regarding what the Applicant was wearing was false, and if so, was it

material; and 4) 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. 3

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: June 26, 2019 Do not publish