EX PARTE EDWARD CHARLES TUCKER (other)

OF TEXAS

NO. WR-74,501-01

EX PARTE EDWARD CHARLES TUCKER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 241-1308-07-A IN THE 241ST JUDICIAL DISTRICT COURT

FROM SMITH 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 pleaded guilty to a jury to the offense of injury to a child, and was sentenced to life imprisonment. The Twelfth Court of Appeals affirmed his conviction. Tucker v. State, No. 12-08-00104-CR (Tex. App. Tyler, September 2, 2009).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to investigate or present evidence of Applicant s history of mental illness, and the fact that he was discharged from a mental health facility shortly before the offense. Applicant also alleges that he entered an open plea to the jury on the erroneous assurance from counsel that hearsay evidence regarding an extraneous bad act would not be admissible.

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. The trial court may 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 habeas record with a copy of the punishment trial transcript. The trial court shall then make findings of fact as to whether counsel was aware of Applicant s history of mental illness, and if so, whether counsel introduced evidence of this history during the punishment trial. The trial court shall also make findings as to whether trial counsel assured Applicant that the hearsay testimony regarding Applicant s abuse of a different child would be inadmissible at the punishment trial. 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.

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: September 15, 2010

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