Rigdon, Jackie Kay Jr. ( 2014 )

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-68,997-03

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EX PARTE JACKIE KAY RIGDON JR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 23637-A-1 IN THE 47TH DISTRICT COURT

FROM RANDALL 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of theft and sentenced to ten years’ imprisonment. He did not appeal his conviction.

            Applicant contends, among other things, that trial counsel failed to discover and the State failed to disclose that the amount of flooring materials alleged in the indictment was less than $1,500.00.

            Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Brady v. Maryland, 373 U.S. 83 (1963). 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 and the prosecutor for the State to respond to Applicant’s claims. 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

            The trial court shall make findings of fact and conclusions of law as to whether: (1) the amount of flooring materials was less than $1,500.00; (2) counsel’s conduct was deficient; (3) Applicant would have pleaded not guilty but for counsel’s conduct; and (4) the State failed to disclose material exculpatory evidence. 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 45 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 60 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: April 2, 2014

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