Taylor, Kimothy Mark

• Court: Court of Criminal Appeals of Texas
• Decided: January 28, 2015
• Docket: WR-81,481-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-81,481-01

EX PARTE KIMOTHY MARK TAYLOR, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W09-01454-X(A) IN CRIMINAL DISTRICT COURT NO. 6 FROM DALLAS 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 ten years’ imprisonment. The Fifth Court of Appeals affirmed his conviction. Taylor

v. State, No. 05-11-00043-CR (Tex. App.—Dallas March 28, 2012) (not designated for publication).

Applicant contends that trial counsel rendered ineffective assistance because, among other

things, he failed to call alibi witnesses at the guilt stage of trial and request that gunshot residue from

the deceased’s clothing be tested. On July 23, 2014, we remanded this application and directed the

trial court to make findings of fact and conclusions of law and order counsel to respond to 2

Applicant’s claims. On remand, counsel filed a sworn affidavit and said, among other things, that

he retained a gunshot-residue expert. He did not, however, say why he did not request that the

gunshot residue from the deceased’s clothing be tested.

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 specific 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.

After reviewing counsel’s second response, the trial court shall make further findings of fact

and conclusions of law as to whether trial counsel’s conduct was deficient and Applicant was

prejudiced. 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 shall

be obtained from this Court. 3

Filed: January 28, 2015 Do not publish