EX PARTE JIMMIE HOWARD FOXWORTH (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-64,692-03

EX PARTE JIMMIE HOWARD FOXWORTH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. CR-24162 IN THE 217TH DISTRICT COURT

FROM ANGELINA 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual assault of a child and sentenced to sixty years' imprisonment. The Tenth Court of Appeals affirmed his conviction. Foxworth v. State, No. 10-04-209-CR (Tex. App.-Waco, delivered September 21, 2005).

Applicant contends inter alia, that his trial counsel rendered ineffective assistance by eliciting and failing to object to extraneous offense and bad act testimony during the guilt-innocence phase of trial, preventing him from testifying at the guilt-innocence phase of trial, and eliciting testimony from a police officer that Applicant had sexually assaulted others.

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).

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 as to whether trial counsel elicited or failed to object to extraneous evidence or bad act testimony. The trial court shall make findings as to whether trial counsel elicited testimony that Applicant had sexually assaulted persons other than the complainant in this case. The trial court shall make findings as to whether trial counsel prevented Applicant from testifying on his own behalf. The trial court shall make findings of fact as to whether the performance of Applicant's trial attorney 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. 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: June 11, 2008

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