EX PARTE LARRY JAMES MCGEE (other)

OF TEXAS

NO. WR-74,805-01

EX PARTE LARRY JAMES MCGEE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 3611-B IN THE 100TH JUDICIAL DISTRICT COURT

FROM CARSON 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 possession of marihuana and sentenced to twenty-five years imprisonment. The Seventh Court of Appeals affirmed his conviction. McGee v. State, No. 07-08-0211-CR (Tex. App. Amarillo, March 6, 2009).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to object when the State introduced a video tape containing evidence of Applicant s prior criminal history, in violation of various pre-trial motions granted by the trial court. Applicant alleges that the video tape was also improperly edited when the jury asked and was permitted to view it again during deliberations, and that this was due to trial counsel s error.

Applicant also alleges that trial counsel was ineffective for failing to present evidence that Applicant s co-defendant had admitted to possessing all of the marihuana found in the vehicle in which Applicant was a passenger. Applicant s co-defendant had signed an affidavit stating that Applicant had no knowledge of the marihuana found in the vehicle until it was discovered by authorities. Although trial counsel filed a pre-trial motion to secure the presence of the out-of-state co-defendant, which was granted by the trial court, the co-defendant appears not to have testified at Applicant s trial. Trial counsel also filed a pre-trial motion to dismiss the charges against Applicant based on the affidavit, and a hearing was held on that motion. The habeas record contains no information regarding what transpired at the hearing.

In a separate ground for review, Applicant alleges that he received ineffective assistance of appellate counsel because appellate counsel failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition for discretionary review pro se.

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 and appellate counsel with the opportunity to respond to Applicant s claims 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 transcript of the pre-trial and trial proceedings in this case. The trial court shall then make findings of fact as to whether the video tape introduced by the State at Applicant s trial contained extraneous offense evidence, and whether trial counsel objected to the admission of the video tape on the basis of pre-trial motions granted by the trial court. The trial court shall also make findings as to whether the jury was allowed to view the video tape again during deliberations, and if so, whether the video tape was edited to remove references to extraneous offenses before it was given to the jury. The trial court shall make findings as to whether trial counsel believed that Applicant s co-defendant Jesse Moore would have testified that Applicant had no knowledge of the marihuana, and if so, why Moore did not testify at Applicant s trial. If counsel did not believe that Moore s testimony would be helpful to the defense, counsel shall state why he filed the pre-trial motion to secure Moore s presence at Applicant s 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 findings of fact as to whether Applicant s appellate counsel timely informed Applicant that his conviction had been affirmed and that he has a right to file a pro se petition for discretionary review. The record shall be supplemented with copies of any documents showing when or how Applicant was notified of this information. 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: November 17, 2010

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