Weisner, Sean

• Court: Court of Criminal Appeals of Texas
• Decided: October 1, 2014
• Docket: WR-81,958-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-81,958-01 & -02

EX PARTE SEAN WEISNER, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. F10-586260H & F10-58692-H IN THE CRIMINAL DISTRICT COURT NO. 1 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 these applications for writs of habeas

corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was

convicted of family violence aggravated assault causing serious bodily injury using a deadly

weapon and aggravated assault with a deadly weapon and was sentenced to seventy years’

and ten years’ imprisonment, respectively. The Fifth Court of Appeals affirmed both

convictions in Weisner v. State, Nos. 05-11-00685-CR & 05-11-00686-CR (Tex. 2

App.–Dallas Feb. 22. 2013, pet. ref’d).

Applicant alleges that he has a history of mental health issues, including paranoid

schizophrenia, psychotic moods, major depression, and auditory hallucinations. Applicant

alleges that he told trial counsel of his mental history. Applicant asserts that he does not

remember committing the offenses and wished to present the defense of insanity at trial.

Instead, Applicant complains that trial counsel failed to timely raise the defense of insanity

and the motion was dismissed by the trial court as untimely filed. See T EX. C ODE C RIM.

P ROC. art. 36c.051. Applicant alleges that without his only available defense, he was forced

to plead guilty.

To prevail on an affirmative defense of insanity, a defendant must establish by a

preponderance of the evidence that he was insane at the time of the offense. T EX. C ODE

C RIM. P ROC. art. 46C.153. Insane means that the defendant, at the time of the offense, and

as a result of severe mental disease or defect, did not know that his conduct was wrong. T EX.

P ENAL C ODE § 8.01.

Applicant has alleged facts that, if true, might entitle him to relief.1 Strickland v.

Washington, 466 U.S. 668 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App.

2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez,

1 The trial court concluded that these applications should be dismissed because Applicant’s application and memorandum exceed the page limit requirements. TRAP 73.1(d). The trial court is incorrect. In both applications, Applicant filed a 15 page, handwritten, memorandum with exhibits. A non-computer generated memorandum, like Applicant’s, is in compliance with the new rule, so long as the memorandum does not exceed 50 pages. Applicant’s 15 page memorandum is well within compliance limits. 3

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 claims of

ineffective assistance of counsel. 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 Applicant at the hearing. T EX. C ODE C RIM. P ROC. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether

counsel’s conduct was deficient and Applicant was prejudiced. The trial court shall

determine whether there is a reasonable probability that, had counsel presented an insanity

defense, the jury would have found Applicant not guilty by reason of insanity. The trial court

shall also determine whether counsel was deficient by not timely raising insanity as a

defense. The trial court shall also make any other findings and conclusions that it deems

relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief.

These applications 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. If any continuances are

granted, a copy of the order granting the continuance shall be sent to this Court. A

supplemental transcript containing all affidavits and interrogatories or the transcription of the

court reporter’s notes from any hearing or deposition, along with trial counsel’s affidavit and

the trial court’s supplemental findings of fact, shall be returned to this Court within 120 days 4

of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: October 1, 2014 Do not publish