NOS. WR-EX PARTE JAMES OWEN SPURLOCK (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NOS. WR-WR-73,450-01 AND WR-73,450-02 
EX PARTE JAMES OWEN SPURLOCK, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NO. 19,452-2006A AND 19,457-2006A 

IN THE 402ND JUDICIAL 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 pleaded guilty to two charges of aggravated sexual assault of two different disabled individuals, and was sentenced to twenty years' imprisonment for each charge, to be served concurrently. He did not appeal his convictions.

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to investigate, failed to obtain DNA testing from Applicant's wife, and coerced Applicant into pleading guilty by advising him that his wife would be subject to prosecution for aggravated perjury and could be sentenced to thirty years' imprisonment if she testified as she proposed to do at trial. Applicant also alleges that counsel had a conflict of interest because he was aware that Applicant blamed him for coercing him into pleading guilty, and would not assist Applicant in trying to withdraw his pleas.

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 provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel by obtaining an affidavit from counsel. The trial court may also 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 first supplement the record with copies of the plea papers, including any written plea agreements, admonishments, judicial confessions, and stipulations. The trial court shall make findings of fact as to whether counsel reviewed the results of the State's DNA testing, and whether counsel considered having Applicant's wife submit samples for DNA testing. The trial court shall make findings as to whether Applicant indicated a desire to have a jury trial, and if so, when he elected to forgo a jury trial in favor of pleading guilty. The trail court shall make findings as to whether counsel advised Applicant that his wife could receive thirty years for aggravated perjury if she testified at trial that she and Applicant had sex in the complainant's room. The trial court shall make findings as to whether a conflict of interest existed when Applicant sought to withdraw his pleas because he believed that counsel had coerced him into pleading guilty. The trial court shall make findings 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.

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: March 3, 2010

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