Stuart, Kassi

• Court: Court of Criminal Appeals of Texas
• Decided: March 19, 2008
• Docket: WR-69,271-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-69,271-01 EX PARTE KASSI STUART, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 03-03-0051-CRA IN THE 81^ST DISTRICT COURT

FROM ATASCOSA COUNTY

Per curiam.

O R D E R

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of injury to a child and sentenced to twenty-five years' imprisonment. The Fourth Court of Appeals affirmed her conviction. Stuart v. State, No. 04-04-00898-CR (Tex. App.-San Antonio, delivered April 26, 2006).

Applicant contends that she is actually innocent of the offense and that her trial counsel rendered ineffective assistance by failing to consult an orthopedic surgeon as a defense expert, failing to investigate the cough medicine given to the victim as a possible cause of the brain injury, failing to request a jury instruction on character evidence, and failing to object to the victim's incessant crying during the trial.

Applicant has alleged facts that, if true, might entitle her to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 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 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 make findings as to whether Applicant has shown she is actually innocent of the offense. The trial court shall make findings of fact as to whether the performance of Applicant's trial attorney 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: March 19, 2008

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