Koss, Lawrence Anthony ( 2019 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-89,480-01
EX PARTE LAWRENCE ANTHONY KOSS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W-1341780-S (A) IN THE 195TH DISTRICT COURT
FROM DALLAS COUNTY
Per curiam.
ORDER
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 entered an open plea of guilty to
the offense of injury to a child, and was sentenced to imprisonment for forty years.
On February 13, 2019, this Court remanded this matter to the trial court for affidavits and
findings regarding Applicant’s claim that he received ineffective assistance of trial counsel.
Applicant alleges that his trial counsel was ineffective for failing to object or request a continuance
when the State introduced a Community Supervision and Corrections Department Comprehensive
Assessment and Treatment Services Report (a “CATS” report) that it received on the second day of
the punishment hearing. The CATS report, prepared by a licensed professional counselor who had
interviewed Applicant, apparently contained some favorable information regarding Applicant’s
likelihood of complying with terms of community supervision and his low risk of re-offending.
However, the report also apparently contained information regarding “a pattern of animal cruelty
from childhood to the present” and a report by Applicant that he “thought about knocking some
boxes over in the shipping department to kill a man who had been sexually harassing a friend.” In
addition, the report indicated that Applicant reported having been treated by a psychologist for many
years and having been diagnosed with Attention Deficit Hyperactivity Disorder. The licensed
professional counsel apparently stated her opinion that Applicant’s behavior was more consistent
with a diagnosis of Conduct Disorder “that ripened into antisocial personality disorder in adulthood”
than with a diagnosis of Attention Deficit Hyperactivity Disorder.
Applicant alleges that trial counsel should have objected and moved for a continuance so that
the information contained in the CATS report could be investigated. In addition, Applicant alleges
that the defense could have brought the licensed professional counselor into court and questioned
her regarding her qualifications to make the statements regarding Applicant’s possible diagnosis.
Applicant also alleges that trial counsel was ineffective for failing to present evidence of his mental
health history and diagnosis at the punishment hearing. Even if Applicant did not tell trial counsel
about his mental health history before the punishment hearing, the information contained in the
CATS report should have put trial counsel on notice that there might be issues regarding Applicant’s
mental health history.
On remand, Applicant’s trial counsel submitted an affidavit in which he stated only that his
usual practice is to “investigate any issues” and to defend his client “according to his or her decisions
on how to proceed in his or her particular case.” Trial counsel stated that he has no reason to believe
that he deviated from his usual practice in this case. Trial counsel’s affidavit does not respond
specifically to any of Applicant’s allegations.
The trial court has entered findings of fact and conclusions of law, describing a number of
possible strategic reasons why trial counsel may not have objected to the introduction of the CATS
report, and why he may not have wanted to call the licensed professional counselor to testify. The
trial court’s findings with regard to trial counsel’s possible rationales are not supported by the record.
Applicant has alleged facts that, if true, might entitle 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 trial counsel to respond more specifically to Applicant’s claims of ineffective assistance
of counsel. Trial counsel shall state whether he was aware of Applicant’s mental health history and
diagnosis, and if so, whether he considered introducing evidence of Applicant’s mental health history
in mitigation of punishment. Trial counsel shall state when the CATS report was first produced by
the State, and whether trial counsel had an opportunity to review the report with Applicant. Trial
counsel shall state whether he believed that the CATS report contained information that was
favorable or unfavorable to the defense, or both. Trial counsel shall state why he did not request a
continuance in order to investigate the contents of the CATS report and in order to investigate the
qualifications of the author of the report. 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 first supplement the habeas record with a copy of the CATS report and
a transcript of the punishment proceedings in this case. 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 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. 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 must
be requested by the trial court and shall be obtained from this Court.
Filed: July 3, 2019
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