EX PARTE DWIGHT BYRD (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-73,908-01 
EX PARTE DWIGHT BYRD, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 07-12-00171-CRK-A IN THE 81ST DISTRICT COURT 
FROM KARNES 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 aggravated assault on a public servant and sentenced to life imprisonment. The Fourth Court of Appeals affirmed his conviction. Byrd v. State, No. 04-08-00313-CR (Tex. App.-San Antonio, delivered July 1, 2009).

Applicant contends, inter alia, that he was denied his right to a fair trial, and that his trial counsel rendered ineffective assistance by failing to object, when he was tried before the jury in handcuffs and shackles. He contends further that appellate counsel was ineffective for failing to challenge the trial court's order that he be tried in handcuffs and shackles and the trial court's ruling admitting photographic evidence of inflammatory, racist writings on the walls of Applicant's cell on appeal.

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 Applicant's trial counsel and appellate counsel to file affidavits responding to Applicant's claims of ineffective assistance of 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 make findings of fact as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. Likewise, the trial court shall make findings of fact as to whether the performance of Applicant's appellate counsel 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 claims 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: June 9, 2010

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