EX PARTE JOHN MARTIN (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-51,191-03

EX PARTE JOHN MARTIN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 85422-B IN THE 252ND DISTRICT COURT

FROM JEFFERSON 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 thirty years' imprisonment. The Ninth Court of Appeals affirmed his conviction. Martin v. State, No. 09-04-450-CR (Tex. App. - Beaumont, May 16, 2007, pet. ref'd).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to: (1) secure Applicant's presence during jury selection; and (2) timely investigate and interview a defense witness, Willie Wells. Specifically, Applicant contends that after the jury panel had been questioned, he and counsel moved to a room outside the courtroom, where he told counsel that he wanted to strike a potential juror. Applicant did not have time to explain his reasons for wanting the strike before counsel was called back into court, leaving Applicant outside the courtroom. Counsel made his strikes without Applicant's knowledge. Applicant contends that he did not know that counsel would not strike the juror as he had requested and that Applicant's absence from the proceeding denied him an opportunity to re-urge his request and explain his position. Applicant further contends that counsel's failure to secure his presence while making the strikes resulted in prejudice because during deliberations at the guilt phase this juror held herself out as an expert and told other jurors that the expert witness's testimony was wrong.

Applicant contends that Willie Wells would have provided testimony that was favorable to the defense. In particular, Mr. Wells had information that the victim's mother and aunt had manipulated the victim into accusing Applicant of sexual assault. Counsel's failure to timely contact Mr. Wells resulted in the loss of this information because Mr. Wells died before trial, without counsel having preserved his statement or having discovered other sources of information and witnesses who might have been known to Mr. Wells.

Counsel's first affidavit did not address these specific contentions. 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 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 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 a second opportunity to respond to Applicant's claims 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 Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

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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