Tatum, Kevin Terrell

• Court: Court of Criminal Appeals of Texas
• Decided: April 17, 2019
• Docket: WR-73,771-09
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-73,771-08 & 73,771-09

EX PARTE KEVIN TATUM, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 1042008-B & 1042008-C IN THE 179TH DISTRICT COURT FROM HARRIS 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 murder and

sentenced to forty-five years’ imprisonment. The First Court of Appeals affirmed his conviction.

Tatum v. State, No. 01-06-01190-CR (Tex. App.—Houston [1st Dist.] Aug. 29, 2008) (not

designated for publication).

On October 5, 2016, we denied the -08 application. Ex parte Tatum, No. WR-73,771-08

(Tex. Crim. App. Oct. 5, 2016) (not designated for publication). We now reconsider that denial on

our own motion and dismiss the -08 application. 2

In his -09 application, Applicant contends, among other things, that trial counsel failed to

interview and call DeMarcus Carter as a witness at the guilt stage of his trial. 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 the above ineffective assistance of counsel claim. 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 him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether trial counsel

was deficient for not interviewing and calling Carter as a witness and whether Applicant was

prejudiced by counsel’s alleged deficient conduct. 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.

The -09 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. 3

Filed: April 17, 2019 Do not publish