Turner, Charles Ross

• Court: Court of Criminal Appeals of Texas
• Decided: December 5, 2018
• Docket: WR-89,110-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,110-01

EX PARTE CHARLES ROSS TURNER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR22949-A IN THE 35TH DISTRICT COURT FROM BROWN 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 possession of a

controlled substance in a drug free zone and sentenced to thirty years’ imprisonment. The Eleventh

Court of Appeals affirmed his conviction. Turner v. State, No. 11-15-00326-CR (Tex.

App.—Eastland Jun. 30, 2017) (not designated for publication).

Applicant contends, among other things, that his trial counsel rendered ineffective assistance

because counsel did not challenge the validity of the traffic stop and did not contest the validity of

the drug free zone finding. The habeas record contains no response from the State or trial counsel 2

and no findings of fact from the trial court.

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 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). In the

appropriate case, the trial court may rely on its personal recollection. Id.

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 of fact and conclusions of law as to whether the

performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient

performance prejudiced Applicant. In so doing, the court shall make specific findings addressing

the legal validity of the traffic stop and the evidence supporting the drug free zone finding in this

case. 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. 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 3

be requested by the trial court and shall be obtained from this Court.

Filed: December 5, 2018 Do not publish