Ussery, Roy Eugene

• Court: Court of Criminal Appeals of Texas
• Decided: October 20, 2021
• Docket: WR-85,165-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-85,165-03

EX PARTE ROY EUGENE USSERY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1459846-A IN THE 338TH DISTRICT COURT FROM HARRIS COUNTY

Per curiam.

ORDER

Applicant was convicted of aggravated sexual assault of a child1 and sentenced to thirty-five

years’ imprisonment. The First Court of Appeals affirmed his conviction. Ussery v. State, 596

S.W.3d 277 (Tex. App.—Houston [1st Dist.] 2019). 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 because he failed

to properly advise Applicant; failed to assert Applicant’s speedy trial claim earlier and accurately;

1 It appears that the judgment erroneously cites the conviction as super aggravated sexual assault of a child younger than six years of age. 2

and failed to object to improper statements made by the prosecutor during closing arguments.

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: October 20, 2021 Do not publish