Tuton, Wesley ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-76,202-02

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EX PARTE WESLEY TUTON, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D-1-DC-10-904003 IN THE 167TH DISTRICT COURT FROM TRAVIS 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 sexual assault and indecency with a child and sentenced to twenty years' imprisonment on each count. He did not appeal his convictions.

Applicant contends that trial counsel rendered ineffective assistance because he advised Applicant that he would be sentenced to 99 years if he did not waive his right to appeal. Applicant also contends that trial counsel failed to establish the complainant's bias or motive with her previous accusations of sexual assault.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). 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 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 first make findings of fact as to whether trial counsel advised Applicant that he would be sentenced to 99 years if he did not waive his right to appeal. The trial court shall then make findings as to whether the complainant had made false accusations of sexual assault in the past and whether this evidence would have been admissible to establish the complainant's motive or bias. See Hammer v. State, 296 S.W.3d 555, 565-66 (Tex. Crim. App. 2009). The trial court shall make conclusions of law as to whether trial counsel's performance was deficient and, if so, whether Applicant was prejudiced. 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: October 5, 2011

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