ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 08-05-00106-CRW IN THE 218TH DISTRICT COURT FROM WILSON COUNTY
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 murder and sentenced to fifty years' imprisonment. The Fourth Court of Appeals affirmed his conviction. Tollefson v. State, No. 04-10-00286-CR (Tex. App.-San Antonio, August 31, 2011).
In a pro se application, Applicant contends that his trial counsel rendered ineffective assistance by: (1) coercing Applicant to reject a plea offer by promising deferred adjudication or acquittal; (2) failing to investigate Applicant's mental health history; (3) failing to assist Applicant when he complained he could not hear the proceedings against him, and; (4) failing to present evidence of sudden passion or provocation during the punishment phase of trial as mitigation evidence. In a supplemental application filed by writ counsel, Applicant alleges that his trial counsel was ineffective for: (1) failing to object to State's witness' references to "victim", "murder", and "crime"; (2) failing to object to inadmissible testimony regarding the deceased's (lack of) criminal history; (3) eliciting testimony that Applicant had a criminal record; and (4) eliciting testimony that after Applicant was arrested and a deputy asked him what happened, he requested a lawyer.
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).
It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if Applicant is represented by counsel, and if not, 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 as to whether: (1) counsel promised deferred adjudication or acquittal to Applicant if he went to trial; (2) counsel investigated Applicant's mental health history; (3) counsel knew that Applicant could not hear the proceedings against him and if so, what actions counsel took to ensure that Applicant could hear the witness' testimony, (4) counsel presented evidence of sudden passion and/or provocation and if not, why not; (5) counsel failed to object to State's witness' references to "victim", "murder", and "crime"; (6) counsel failed to object to inadmissible testimony regarding the deceased's (lack of) criminal history; (7) counsel elicited testimony that Applicant had a criminal record; and (8) counsel elicited testimony that after Applicant was arrested and a deputy asked him what happened, he requested a lawyer. 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. 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 shall be obtained from this Court.
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