EX PARTE JOE BRADSHAW (other)

OF TEXAS

NO. WR-73,207-01

EX PARTE JOE BRADSHAW, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 05F0385-202 IN THE 202ND DISTRICT COURT

FROM BOWIE 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 murder and sentenced to fifty years imprisonment. The Sixth Court of Appeals affirmed his conviction. Bowie v. State, 244 S.W.3d 490 (Tex. App. Texarkana 2007, pet. dism d).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance by failing to object to an erroneous jury charge which did not require jury unanimity on the issue of sudden passion.

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); Sanchez v. State, 23 S.W.3d 30 (Tex. Crim. App. 2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). 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 ordered an affidavit from trial counsel prior to sending this application to this Court. However, trial counsel did not respond.

The trial court shall obtain a response from trial counsel, and shall make a finding as to whether counsel s failure to object was based on reasonable trial strategy. 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 counsel s failure to object to the charge was deficient or was based on reasonable trial strategy. If the trial court finds counsel did not have a reasonable trial strategy for failing to object to the jury charge, then the court shall determine whether Applicant was prejudiced under the second prong of Strickland. 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: January 27, 2010

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