Farrar, Odis Clint ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-75,183-01

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EX PARTE ODIS CLINT FARRAR, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 8528 IN THE 8^TH DISTRICT COURT FROM FRANKLIN COUNTY

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   Per curiam. O R D E R  

   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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty and was convicted of assault on a family member and sentenced to two years' imprisonment. He did not appeal his conviction.

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance by failing to investigate his enhancement allegation. He alleges that he was incarcerated within TDCJ at the time of the alleged enhancement and had not been convicted under that cause number.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (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, 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 obtain a response from Applicant's trial counsel regarding 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).

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. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings as to whether Applicant was previously convicted in Denton County cause number CR9705464D for assault on a family member as alleged in the information. If not, the trial court shall determine whether Applicant has a different conviction for assault on a family member which could have been used to enhance the current offense to a third degree felony under the Texas Penal Code. The trial court shall make findings of fact as to whether the performance of Applicant's trial attorney 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 claims 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. 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 the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: February 2, 2011

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