EX PARTE DESMOND DENARD BROWN (other)

OF TEXAS

NOS. WR-72,508-03 AND WR-72,508-04

EX PARTE DESMOND DENARD BROWN, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 34661-B AND 34659-B IN THE 124TH DISTRICT COURT

FROM GREGG 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 aggravated assault and aggravated robbery and sentenced to 15 years imprisonment in each cause. The Sixth Court of Appeals dismissed Applicant s appeals for want of jurisdiction. See Brown v. State, Nos. 06-08-00186-CR and 06-08-00185-CR, Tex. App. Texarkana, 2009, pet ref d.) (not designated for publication.)

Applicant alleges inter alia that counsel was ineffective for advising him to plead guilty to two offenses allegedly committed against the same complainant when the evidence only supported his conviction for one of the offenses. Specifically, Applicant alleges that counsel advised him to plead guilty to an aggravated robbery cause allegedly committed on May 3, 2006, and an aggravated assault cause allegedly committed on May 21, 2006. Applicant alleges that if counsel had investigated further, counsel would have discovered that Applicant was suspected of having committed a single offense, which occurred on, May 3, 2006. Also, counsel would have discovered that Applicant was solely suspected of committing that offense against complainant David Howard. Applicant alleges that he was prejudiced by counsel s deficient performance because he was convicted twice for the same offense in violation of the Double Jeopardy Clause of the United States Constitution. Finally, Applicant alleges that counsel was ineffective for failing to investigate whether self-defense was a viable defense to raise at trial.

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 order trial counsel to file a supplemental affidavit addressing the following: (1) whether counsel s pre-trial investigation showed that Applicant committed an aggravated robbery offense on May 3, 2006, and an aggravated assault offense on May 21, 2006; (2) whether counsel s pre-trial investigation showed that Applicant committed offenses against complainants other than David Howard; (3) whether counsel made a strategic decision to waive any errors in the charging instruments and, if so, why; and, (4) whether there was evidence indicating that Applicant acted in self-defense when he committed these offenses. The trial court shall also instruct the clerk to supplement the record with a copy of the transcription of the court reporter s notes from the plea hearing.

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. Specifically, the trial court shall make findings of fact as to whether counsel s pre-trial investigation showed that Applicant committed an aggravated robbery offense on May 3, 2006, and an aggravated assault offense on May 21, 2006. The trial court shall also make findings of fact as to whether counsel s pre-trial investigation showed that Applicant committed offenses against complainants other than David Howard. The trial court shall also make findings of fact as to whether counsel made a strategic decision to waive any errors in the charging instruments. The trial court shall also make findings of fact as to whether there was evidence indicating that Applicant acted in self-defense when he committed these offenses. The trial court shall also make findings of fact as to whether Applicant has been convicted twice for the same offense in violation of the Double Jeopardy Clause of the United States Constitution. 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: January 27, 2010

Do not publish