EX PARTE JEROME ANTHONY MICHAEL SMITH (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-70,198-01 & -02

EX PARTE JEROME ANTHONY MICHAEL SMITH, Applicant

ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. 56344 & 56036 IN THE 27TH DISTRICT COURT

FROM BELL 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 engaging in organized criminal activity and was sentenced to two terms of ninety-nine years' imprisonment. The Third Court of Appeals affirmed his convictions. Smith v. State, Nos. 03-05-00087-CR & 03-05-00088-CR (Tex. App.-Austin, June 15, 2006, pets. ref'd).

Applicant contends that trial counsel rendered ineffective assistance because they did not request a jury instruction pursuant to Tex. Code Crim. Proc. art. 38.14. Applicant also contends that appellate counsel rendered ineffective assistance because he did not raise trial court error and legal insufficiency and properly argue factual insufficiency.

The trial court entered findings of fact and conclusions of law and recommended that we deny Applicant's claims. We believe, however, that the record is not sufficient to resolve Applicant's claims. Accordingly, the trial court shall make further findings of fact as to what corroborating evidence, if any, tended to connect Applicant with these offenses. Tex. Code Crim. Proc. art. 38.14. 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 then make further findings of fact as to whether the performance of trial and appellate counsel was deficient and, if so, whether Applicant was prejudiced. 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 claims 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: August 20, 2008

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