Tolopka, Daniel Ii

• Court: Court of Criminal Appeals of Texas
• Decided: August 24, 2022
• Docket: WR-74,867-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-74,867-02

EX PARTE DANIEL TOLOPKA II, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CM-06-522 IN THE 278TH DISTRICT COURT FROM LEON COUNTY

Per curiam. YEARY , J. filed a concurring opinion joined by KELLER, P.J. and SLAUGHTER, J.

ORDER

Applicant was convicted of murder and sentenced to ninety-nine years’ imprisonment. The

Seventh Court of Appeals affirmed his conviction. Tolopka v. State, No. 07-0008-CR (Tex.

App.—Amarillo Jan. 31, 2010)(not designated for publication). Applicant filed this application for

a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court.

See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends, among other things, that trial counsel was ineffective by failing to

request a limiting instruction regarding prior bad acts, failing to object to testimony from a person

not qualified as an expert, and failing to object to the prosecutor asking a witness about the 2

truthfulness of another witness. Applicant has alleged facts that, if true, might entitle him to relief.

Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the record should be developed. The

trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

The trial court shall order trial counsel to respond to Applicant’s claim. In developing the record,

the trial court may use any means set out in Article 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 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 findings of fact and conclusions of law as to whether trial counsel’s

performance was deficient and Applicant was prejudiced. The trial court may make any other

findings and conclusions that it deems appropriate in response to Applicant’s claims.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: August 24, 2022 Do not publish