EX PARTE DONALD ELIJAH MATTHEWS, JR. (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NOS. WR-74,754-01 & WR-74,754-02 
EX PARTE DONALD ELIJAH MATTHEWS, JR., Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. 57859-01-A AND 57858-A IN THE 47TH JUDICIAL DISTRICT COURT 
FROM POTTER 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 arson, for which he was sentenced to eighty years' imprisonment, and violation of a protective order, for which he was sentenced to fifteen years' imprisonment. The Seventh Court of Appeals affirmed his convictions. Matthews v. State, Nos. 07-08-00364-CR and 07-08-00363-CR (Tex. App. - Amarillo, August 5, 2009, pet. ref'd).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to call a defense witness who was subpoenaed and who would have testified favorably for the defense, failed to present mitigating evidence during the punishment phase, and for arguing that the two offenses with which Applicant was charged arose from a single criminal episode. Applicant also alleges that the complainant has provided an affidavit in which she states that she was coerced into testifying against Applicant by threats of jail time, and that she was coached into testifying falsely by the prosecutor.

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 and the trial prosecutor with the opportunity to respond to Applicant's claims of ineffective assistance of counsel and prosecutorial misconduct. Specifically, trial counsel shall state whether he was aware of the existence of Doreen Lewis, and of her availability and willingness to testify on Applicant's behalf at trial. If counsel was aware of the existence of this potential witness, counsel shall state why he elected not to call her to testify. Counsel shall state whether he sought out or presented mitigating evidence or witnesses at punishment. He shall also state in what context he argued that the two offenses arose from a single criminal episode, and what his reasons were for making this argument. Counsel shall also state whether he was aware of any threats or promises made to the complainant by the State to secure her testimony at Applicant's trial. The prosecutor shall state whether any such threats or promises were made to the complainant, and whether the complainant was instructed to testify falsely. 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 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 make findings as to whether the affidavit of La'Kesha Dawn Matthews is authentic, and whether it is credible. 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: November 10, 2010

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