SEAT, JIMMY DELL Jr. ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-65,558-01

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EX PARTE JIMMY DELL SEAT, JR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 20356 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 pleaded guilty to aggravated assault and was placed on deferred adjudication probation for ten years. He was later adjudicated guilty and sentenced to twenty years' imprisonment. He did not appeal his conviction.

Applicant contends that counsel at the adjudication of guilt proceeding was ineffective for failing to object to the introduction of photographs of marihuana plants. In addition, applicant contends that the evidence was insufficient that he violated the conditions of his probation. Specifically, he alleges that there was insufficient evidence that he intentionally and knowingly possessed marihuana; that he intentionally and knowingly possessed drug paraphernalia; and that he allowed marihuana to be grown on property he possessed, lived at, or owned.

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. 1997), the trial court is the appropriate forum for findings of fact. 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.

The trial court shall make findings of fact and conclusions of law as to whether counsel's performance was deficient and, if so, whether applicant was prejudiced. In addition, the trial court shall make findings of fact and conclusions of law as to what evidence was introduced at the adjudication of guilt proceeding, and whether such evidence established by a preponderance of the evidence that applicant violated the conditions of his probation. 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 20, 2006

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