Walker, Dwayne Anthony Jr. ( 2006 )


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      IN THE COURT OF CRIMINAL APPEALS

    OF TEXAS




    NOS. WR-63,796-01,-02


    EX PARTE DWAYNE WALKER JR., Applicant






    ON APPLICATIONS FOR WRIT OF HABEAS CORPUS

    CAUSE NOS. FR44733 & FR44734 IN THE 264TH DISTRICT COURT

    BELL COUNTY


    Per curiam.  

    O R D E R  

    These are applications for writ of habeas corpus that were transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of two counts of aggravated robbery and sentenced to confinement for life. Applicant's convictions were affirmed on appeal. Walker v. State, Nos. 03-95-00172-CR & 03-95-00173-CR (Tex. App.--Austin, delivered July 12, 1995, no pet.).

    Applicant contends that counsel was ineffective for failing to object to Applicant's confession. The trial court has entered findings of fact or conclusions of law finding that counsel was effective. However, we do not believe that those factual findings are sufficient to completely resolve the issues presented. Because Applicant has stated facts requiring resolution and because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution of those issues. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from counsel, or it may order a hearing. In the appropriate case the trial court may also rely on its personal recollection.

    If the trial court elects to hold a hearing, it shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court shall then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.

    The trial court shall then make findings of fact as to whether counsel investigated the circumstances of Applicant's confession and whether counsel filed a motion to suppress. If the trial court finds that counsel did not, it shall make findings of fact as to whether the motion would have been granted. Finally, the trial court shall make findings of fact as to whether counsel was ineffective. The trial court shall make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.

    Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.Crim.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within 90 days of the date of this order. (1) A supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. (2)



    IT IS SO ORDERED THIS THE TWELFTH DAY OF APRIL 2006.



    DO NOT PUBLISH

    1. In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

    2. Any extensions of this time period shall be obtained from this Court.

Document Info

Docket Number: WR-63,796-01

Filed Date: 4/12/2006

Precedential Status: Precedential

Modified Date: 9/15/2015