EX PARTE LACARLTON DEWAYNE MITCHELL (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-74,531-01 
EX PARTE LACARLTON DEWAYNE MITCHELL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 44534-C-1 IN THE 89TH JUDICIAL DISTRICT COURT 
FROM WICHITA 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 ninety-nine years' imprisonment. The Second Court of Appeals affirmed his conviction. Mitchell v. State, No. 02-07-196-CR (Tex. App. - Fort Worth, October 23, 2008, pet. ref'd).

Applicant contends that his trial counsel rendered ineffective assistance for a number of reasons. The habeas record contains no affidavit from counsel, no answer from the State, and no findings of fact from the trial court.

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 claims of ineffective assistance of counsel. Specifically, counsel should state whether he considered objecting to or challenging the venire as not being a fair cross-section of the community. He should also state whether he noted any defects in the jury charge or the verdict form. Counsel should state whether he considered exercising a strike or peremptory challenge on venire member Elizabeth Battista based on her concern about her employment situation. Counsel should state whether he considered calling Applicant's girlfriend, Maricia Blair to offer an alibi defense, and if he did not do so, why not. Counsel should state whether he believed that the prosecutor improperly shifted the burden of proof to the defense during closing arguments, and whether the prosecutor argued for sentencing based on extraneous offenses rather than the offense for which Applicant was on trial. If so, counsel should state whether objections were made, and if not, why not. 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 copies of the trial transcript and the jury charge and verdict forms. The trial court shall then make findings of fact 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 29, 2010

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