Walpool, Torriano

• Court: Court of Criminal Appeals of Texas
• Decided: October 25, 2017
• Docket: WR-87,520-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-87,520-01

EX PARTE TORRIANO WALPOOL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W14-76467-J(A) IN THE CRIMINAL DISTRICT COURT NUMBER THREE 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 the offense of

sexual assault of a child and sentenced to imprisonment for thirty years.

Applicant alleges counsel was ineffective for: (1) failing to file a motion to prohibit the State

from impeaching him with his prior conviction; (2) failing to conduct a reasonable pre-trial

investigation; (3) failing to cross-examine Altresha Walpool and A.T. concerning prior statements

they made to investigating detectives that the complainant was lying and otherwise effectively cross- examine the State’s witnesses; (4) failing to confront Detective Herring who was designated as the

State’s last witness but was not called because she was testifying in a different trial; (5) failing to

object to inadmissible hearsay offered through the testimony of Gabriel Marquez; (6) failing to

object to inadmissible hearsay offered through the testimony of Precious Troutman; (7) failing to file

a motion in limine and object to testimony of inadmissible hearsay and bad acts between Applicant

and the complaining witness; (8) failing to object, bring to the trial court’s attention, or request a

mistrial due to juror misconduct, specifically a juror who was sleeping during portions of the

testimony; (9) failing to object to the State’s late notice of intent to enhance punishment; (10) failing

to file a motion in limine and object to the State’s use of extraneous offenses; (11) failing to object

to inadmissible text messages entered into evidence by the State; (12) failing to object to the State

failing to disclose evidence in compliance with the Michael Morton Act and failing to move for a

continuance; (13) failing to prepare for trial, confer adequately with Applicant, or prepare Applicant

to testify; and (14) failing to object to an out-of-state pen packet introduced at punishment as hearsay

and improperly authenticated. Applicant also alleges the cumulative effect of counsel’s actions

deprived him of due process and a fair trial.

The State responds to Applicant’s claims as follows, in pertinent part:

The State believes that further factual investigation is necessary to determine the merit, if any, to applicant’s instant habeas allegation of ineffective assistance of counsel. To that end, the State requests that this Court issue an order designating issues and gather evidence, as is customary, by way of affidavit from defense counsel Greg Neugebauer. Pending production of evidence substantiating applicant’s claim. The State denies applicant’s allegations.

The State’s proposed order designating issues was not timely signed by the trial court and

the habeas record has been properly forwarded to this Court by the district clerk. However, the

record has been forwarded without the trial court having resolved the ineffective assistance of counsel issue designated by the State in its proposed order. We remand this application to the

Criminal District Court Number Three Court of Dallas County to allow the trial judge to complete

an evidentiary investigation and enter findings of fact and conclusions of law.

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

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

Filed: October 25, 2017 Do not publish