Shamburger, Torey Lewayne

• Court: Court of Criminal Appeals of Texas
• Decided: November 9, 2022
• Docket: WR-94,255-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,255-01

EX PARTE TOREY LEWAYNE SHAMBURGER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W19-34438-R(A) IN THE 265TH DISTRICT COURT FROM DALLAS COUNTY

Per curiam.

ORDER

Applicant was convicted of aggravated robbery and sentenced to twenty years’ imprisonment.

The Fifth Court of Appeals affirmed his conviction. Shamburger v. State, No. 05-20-00108-CR

(Tex. App.—Dallas Jun. 15, 2021) (not designated for publication). Applicant filed this application

for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this

Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant essentially contends, among other things, that trial counsel was ineffective because

he failed to investigate and present evidence of Applicant’s mental issues that was relevant to both

the guilt-innocence and punishment phases of trial. Applicant has alleged facts that, if true, might

entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the record should 2

be developed. The trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC.

art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant’s claim. In

developing the record, the trial court may use any means set out in Article 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 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 shall make specific

findings as to (1) whether counsel adequately investigated Applicant’s mental history, intellectual

history and status, disability status, and family background; and (2) how Applicant’s histories and

statuses effected counsel’s trial strategy. The trial court may make any other findings and

conclusions that it deems appropriate in response to Applicant’s claims.

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

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: November 9, 2022 Do not publish