Smith, Justin Wade

• Court: Court of Criminal Appeals of Texas
• Decided: January 27, 2021
• Docket: WR-90,298-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,298-01

EX PARTE JUSTIN WADE SMITH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 10-2531-CR-A IN THE SECOND 25TH DISTRICT COURT FROM GUADALUPE 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 continuous sexual

abuse of a child and sentenced to forty years’ imprisonment without the possibility of parole. The

Fourth Court of Appeals affirmed the conviction. Smith v. State, No. 04-12-00213-CR, 397 S.W.3d

765 (Tex. App.—San Antonio 2013).

In his habeas application, Applicant raised many claims, and this Court remanded to the trial

court several claims that alleged ineffective assistance of counsel. Strickland v. Washington, 466 2

U.S. 668 (1984). On remand, the trial court supplemented the habeas record with affidavits and

findings and recommends that this Court deny habeas relief. This Court is unconvinced that the

record supports the findings and recommendation. Under the facts of Applicant’s case, it appears that

the evidence Applicant presents in habeas would have supported counsel’s strategy to “emphasize[]

the inconsistencies in the stories told by the State’s witnesses, the long passage of time before an

outcry was made by the alleged victim, and the motivations of the State’s witnesses to make a false

accusation of sexual abuse,” but counsel did not discover and present it.

Counsel says, “I do not have any memory of [Applicant] alerting me to the existence of any

records that would have refuted the State’s case.” Counsel does not indicate why he would not have

obtained the records if told of them, other than to say that they perhaps may not have been relevant,

and counsel does not indicate whether he asked Applicant his whereabouts during the approximate

4½ month period alleged in the indictment’s on-or-about range. 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 conduct a live evidentiary

hearing regarding Applicant’s claims that trial counsel was ineffective in his investigation of the case

and in his representation of Applicant at trial. Before doing so, the trial court 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 additional findings of fact and conclusions of law regarding 3

Applicant’s ineffective assistance of trial counsel claims, including findings regarding whether trial

counsel should have discovered the evidence Applicant presents in habeas and whether counsel

should have presented this evidence at trial. Strickland, supra. 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 claims 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.

Filed: January 27, 2021 Do not publish