EX PARTE WILLIAM CODY GRIM (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-41,787-02, -03 & -04

EX PARTE WILLIAM CODY GRIM, Applicant

ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. 10147, 10150 & 10151 IN THE 29TH DISTRICT COURT

FROM PALO PINTO 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 these applications for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of aggravated assault with a deadly weapon and one count of injury to a child. He was sentenced to imprisonment for two terms of twenty years and one term of life. The Eleventh Court of Appeals affirmed his convictions. Grim v. State, Nos. 11-95-00292-CR, 11-95-00293-CR & 11-95-00294-CR (Tex. App.-Eastland, May 9, 1996, no pet.).

Applicant contends, among other things, that trial counsel rendered ineffective assistance because he failed to file an election for the jury to assess punishment. On April 2, 2008, we remanded these applications and directed the trial court to provide trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. The record after remand, however, contains no response from counsel.

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. 1960), 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make further findings of fact as to whether the performance of Applicant's 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.

These applications 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 10, 2008

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