Garvin, Lori ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-65,709-01

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EX PARTE LORI GARVIN, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 19072 HC-1 IN THE SIXTH DISTRICT COURT FROM LAMAR 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 was placed on deferred adjudication probation for four years. She was subsequently adjudicated guilty and sentenced to two years' imprisonment. She did not appeal her conviction.

Applicant contends that her trial counsel at the adjudication of guilt proceeding rendered ineffective assistance because he failed to present mitigating evidence during sentencing and to allow Applicant to present such evidence on her own behalf.

Applicant has alleged facts that, if true, might entitle her 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. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity 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). In the appropriate case, the trial court may rely on its personal recollection. Id.

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 of fact as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. Specifically, the trial court shall determine whether counsel formally withdrew before sentencing and, if not, whether he presented mitigating evidence during sentencing. If the trial court determines that counsel presented no mitigating evidence, the court shall determine whether Applicant was prejudiced. In addition, the trial court shall determine whether Applicant was prevented from presenting mitigating evidence on her own behalf. 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. 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: September 27, 2006

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