Tatro, Stephen Edward

• Court: Court of Criminal Appeals of Texas
• Decided: March 29, 2006
• Docket: WR-62,073-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-62,073-02 EX PARTE STEPHEN EDWARD TATRO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM WALLER COUNTY

IN CAUSE NO. 00-07-10538

IN THE 155^TH DISTRICT COURT

Per curiam.

O R D E R

This is an application for a writ of habeas corpus that was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of murder and sentenced to confinement for fifty years. Applicant's conviction was affirmed on appeal. Tatro v. State, No. 01-01-00523-CR (Tex. App.--Houston [1^st Dist.], delivered April 17, 2003, pet. ref'd).

Applicant contends that counsel was ineffective for not challenging the State's hearsay objections and that the trial court erred in not submitting a lesser-included offense charge to the jury. The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed, and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from counsel, or it may order a hearing. In the appropriate case the trial court may also rely on its personal recollection.

If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court shall then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.

Following receipt of additional information, the trial court shall make findings of fact as to whether counsel challenged the State's hearsay objections to testimony from Rusty Tatro, Richard Casper, Ken Young, and Al Barrett involving the violent character of the victim. If the trial court determines that the State's objections were not challenged, the trial court shall make findings of fact as to whether counsel was ineffective. The trial court shall also make findings of fact as to whether a lesser-included offense charge was submitted to the jury and whether Applicant was entitled to such a charge. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.

Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. ⁽¹⁾ 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. ⁽²⁾

IT IS SO ORDERED THIS THE 29^TH DAY OF MARCH, 2006.

DO NOT PUBLISH

1.

In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

2.

Any extensions of this time period shall be obtained from this Court.