Russell, David Allen

• Court: Court of Criminal Appeals of Texas
• Decided: August 24, 2022
• Docket: WR-92,506-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-92,506-01, WR-92,506-02, WR-92,506-03, & WR-92,506-04

EX PARTE DAVID ALLEN RUSSELL, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. W199-81323-2012-HC, W199-81325-2012-HC, W199-81326-2012-HC, W199-80629-2013-HC IN THE 199TH DISTRICT COURT FROM COLLIN COUNTY

Per curiam.

ORDER

Applicant was convicted of sexual assault of a child, two counts of indecency with a child

by contact, and two counts of sexual assault. He was sentenced to 8, 10, 12, and 15 years’

imprisonment, with the 8-year and 15-year sentences running consecutively. The Thirteenth Court

of Appeals affirmed his conviction. Russell v. State, Nos. 13-13-00372-CR, 13-13-00373-CR, 13-13-

00374-CR, and 13-13- 00375-CR (Jan. 29, 2015). Applicant filed these applications for writs of

habeas corpus in the county of conviction, and the district clerk forwarded them to this Court. See

TEX . CODE CRIM . PROC. art. 11.07.

In his May 3, 2022, “Brief In Support of Application,” Applicant contends that trial counsel 2

was ineffective because he failed to obtain and present Applicant’s medical records regarding

Applicant’s kidney disease and testimony from his treating physician to corroborate Applicant’s

girlfriend’s testimony. On Aug. 10, 2022, Applicant filed the medical records at issue with the

district clerk, who forwarded them to this Court. Habeas counsel’s cover letter indicates that

Applicant also filed an amended Art. 11.07 application. However, this Court has not received that

pleading.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate

forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). In developing the record, the

trial court may use any means set out in Article 11.07, § 3(d).

It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing,

it shall determine if Applicant is represented by counsel, and if not, whether Applicant is indigent.

If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel

to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or

retained, the trial court shall immediately notify this Court of counsel’s name.

The trial court shall make findings of fact and conclusions of law as to whether trial counsel’s

performance was deficient and Applicant was prejudiced. The trial court may make any other

findings and conclusions that it deems appropriate in response to Applicant’s claim.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from 3

hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: AUGUST 24, 2022 Do not publish