Skolnik, Brian

• Court: Court of Criminal Appeals of Texas
• Decided: June 29, 2016
• Docket: WR-76,252-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-76,252-02

EX PARTE BRIAN SKOLNIK, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. S-08-3093CR-HC-2 IN THE 36TH DISTRICT COURT FROM SAN PATRICIO COUNTY

Per curiam. ALCALA , J., filed a concurring opinion in which JOHNSON and RICHARDSON , JJ., joined. YEARY , J., filed a concurring opinion in which KEASLER and HERVEY , JJ., joined.

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 charged with murder. While

he originally pleaded “not guilty” and proceeded to trial by jury, immediately after the State rested

he changed his plea to “guilty.” Following a punishment trial, he was sentenced to forty years’

imprisonment. The Thirteenth Court of Appeals affirmed his conviction. Skolnik v. State, No. 13-

09-00058-CR (Tex. App. — Corpus Christi–Edinburg, July 15, 2010) (not designated for 2

publication).

Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance

because counsel failed to prepare a defensive strategy, failed to make an opening statement, failed

to present any witnesses, failed to object to false testimony by the State’s witnesses, failed to request

a mistrial when juror misconduct came to light, advised Applicant that there was no money to pay

for a defense expert witness, and coerced Applicant into changing his plea after the State rested.

Applicant also alleges that his original trial counsel, who developed medical issues and had to

withdraw from the representation failed to inform Applicant that he had terminal brain cancer, and

advised Applicant to reject pre-trial plea offers, telling him that the case could be won at trial

because the State lacked evidence.

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. 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.

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 supplement the record with a copy of the trial docket or any other

1 This Court has considered Applicant’s other claims and finds them to be without merit. 3

documents showing when Applicant’s original counsel withdrew from the representation and when

a new attorney was appointed or retained. The trial court shall make findings as to whether the State

made any pre-trial plea offers, and if so, whether Applicant rejected such offers on the record or in

writing. The trial court shall then 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

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 shall

be obtained from this Court.

Filed: June 29, 2016 Do not publish