Ross, Dempster a

• Court: Court of Criminal Appeals of Texas
• Decided: June 20, 2018
• Docket: WR-84,576-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-84,576-02

EX PARTE DEMPSTER A. ROSS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W416-80539-2104-HC IN THE 416TH DISTRICT COURT FROM COLLINS 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 arson and

sentenced to fifteen years’ imprisonment. The Fifth Court of Appeals affirmed his conviction. Ross

v. State, 05-14-01184-CR (Tex. App.—Dallas Jan. 13, 2016) (not designated for publication).

Applicant contends, among other things, that trial counsel failed to request or object to the

omission of an accomplice-witness instruction. The trial court made findings of fact and conclusions

of law and recommended that we deny relief. We believe that the trial court’s findings and

conclusions are not sufficient to resolve Applicant’s claim. 2

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

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.

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.

The trial court shall make further findings and conclusions as to whether Alisa Crouch was

an accomplice and what evidence, if any, corroborated her testimony and tended to connect

Applicant to the arson. See TEX . CODE CRIM . PROC. art. 38.14. The trial court shall also make further

findings and conclusions as to whether counsel’s conduct was deficient and Applicant was

prejudiced. The trial court shall also make any other findings and conclusions 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. 3

Filed: June 20, 2018

Do not publish.