Franklin, Sugar Ray ( 2014 )

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

---

NO. WR-8,108-05

---

EX PARTE SUGAR RAY FRANKLIN, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W11-55114-T(A) IN THE 283^RD DISTRICT COURT

FROM DALLAS COUNTY

---

            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 aggravated assault and sentenced to five years’ imprisonment. He did not appeal his conviction.

            Applicant contends, inter alia, that his trial counsel rendered ineffective assistance. The State filed an answer in which it requested that the trial court designate issues to be resolved and order a response from trial counsel. There is no order designating issues in the writ record nor is there an affidavit from counsel or findings from the trial court. It is unclear whether a timely order designating issues was signed and, if so, why the district clerk failed to forward it to this Court. It is also unclear whether the trial court is aware that the district clerk forwarded this application to this Court for disposition.

            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 both trial counsel and appellate 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. Tex. Code Crim. Proc. art. 26.04.

            The trial court shall state whether it signed an order designating issues in this cause and if so, the district clerk will supplement the writ record with that order. 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 determine whether appellate counsel’s actions or inactions deprived Applicant of his right to direct appeal. 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. 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.

Filed: January 15, 2014

Do not publish