EX PARTE PATRICK D. PINKARD (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-43,112-02, WR-43,112-03, AND WR-43,112-04

EX PARTE PATRICK D. PINKARD, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 19,748-2007, 19,723-2007, AND 19,724-2007 IN THE 402ND DISTRICT COURT FROM WOOD 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 writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of three counts of forgery and sentenced to ten (10) years' confinement on each count. He did not appeal his convictions.

Applicant alleges inter alia that there was prosecutorial misconduct in this case as the District Attorney's Office was unduly influenced by Janice Holland; who works for the Wood County Sheriff's Department. He alleges that the victim impact statement was not written by Jewell Williams, the signatory, but by someone else, and has submitted an affidavit from Williams to support that allegation. He alleges that the Assistant District Attorney knew that the victim impact statement was false but nevertheless offered it into evidence. He alleges that counsel rendered ineffective assistance because even though counsel was aware that Applicant could not get a fair trial in Wood County, he nevertheless failed to file a motion to transfer venue. Also, Applicant alleges that counsel's pre-trial investigation was deficient as he failed to contact witnesses, failed to obtain documents from the bank which would have shown that Applicant did not cash the checks, and failed to investigate the validity of the victim impact statement. Applicant further alleges that his pleas were involuntary because counsel advised him that he could not get a fair trial in Wood County and that he, thus, felt like he had no choice but to plead guilty.

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. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) in that it shall order counsel to file an affidavit addressing: (1) whether counsel believes that the victim impact statement was written by someone other than the signatory; (2) whether counsel believes Applicant could get a fair trial in Wood County; (3) whether counsel believes Applicant's pleas were voluntarily entered; (4) why counsel decided not to file a motion to transfer venue to another county; and, (5) whether counsel believes his pre-trial investigation was adequate. The trial judge shall also order the Assistant District Attorney who prosecuted these cases to file an affidavit addressing: (1) whether he or she believes that the victim impact statement was written by someone other than the signatory; and, (2) whether Holland or any other person unduly influenced the way these cases were prosecuted. 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 and conclusions of law in regard to Applicant's claim that the victim impact statement was written by someone other than the signatory. The trial judge shall also make findings of fact as to whether the victim impact statement is credible and shall supplement the record with a copy of the statement. The trial judge shall also make findings of fact as to whether Williams' affidavit is credible. The trial judge shall also make findings of fact as to whether counsel's performance was objectively deficient and whether it prejudiced the outcome of these proceedings. The trial court shall make findings of fact and conclusions of law in regard to Applicant's claim that his pleas were involuntary. 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: June 25, 2008

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