EX PARTE JASON MYERS GIBSON (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-73,299-01 
EX PARTE JASON MYERS GIBSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 07-0168X IN THE 71ST DISTRICT COURT 
FROM HARRISON 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 burglary of a habitation with a deadly weapon, enhanced by a prior felony conviction, and was sentenced to ninety-nine years' confinement. The Sixth Court of Appeals affirmed his conviction. Gibson v. State, No. 06-07-00200-CR (Tex. App.-Texarkana, delivered July 2, 2008).

This Court received the original 11.07 application on January 7, 2010 and denied relief without a written order on January 20, 2010. We now withdraw that decision, reconsider the case on our own motion, and remand it to the trial court for findings of fact and conclusions of law consistent with this order. Tex. R. App. P. 79.2(d).

Applicant contends that he received ineffective assistance of counsel because his attorney failed to offer into evidence at trial the written statements of two eye-witnesses which were inconsistent with the eye-witnesses' trial testimony. Counsel, who is now a District Court Judge and presided over Applicant's initial application, did not file an affidavit. Likewise, as the Judge presiding over Applicant's habeas corpus application, he made no findings of fact or conclusions of law.

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. Since the presiding judge of the 71st District Court was Applicant's trial counsel, he is disqualified from presiding over Applicant's habeas proceedings. Tex. Code Crim. Pro. Art. 30.01. Therefore, the Presiding Judge of the First Administrative Region shall assign this case to a different trial judge to preside over Applicant's habeas corpus case. The assigned trial judge shall then order trial counsel to file an affidavit addressing Applicant's claim. In addition, the assigned trial judge may use any means set out in Tex. Code Crim. Proc. art. 11.07, 3(d).

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 as to whether trial counsel's performance 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.

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.

A copy of this Order shall be sent to the Presiding Judge of the First Administrative Region.

Filed: June 9, 2010

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