EX PARTE JAMES CLAYTON DAVENPORT (other)

OF TEXAS

NO. WR-74,968-01

EX PARTE JAMES CLAYTON DAVENPORT, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. CR-03-7385 IN THE 276TH JUDICIAL DISTRICT COURT

FROM CAMP 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 murder, and was sentenced to ninety-nine years imprisonment. He did not appeal his conviction.

Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to move for competency and sanity evaluations, failed to perform an independent investigation, failed to subpoena Applicant s medical records, failed to investigate the possibility of an insanity defense, failed to call witnesses to testify regarding Applicant s mental health, failed to advise the trial court that Applicant was heavily medicated at the time of the offense and the time of the plea, and allowed Applicant to enter a plea in exchange for a ninety-nine year sentence knowing that Applicant was not competent.

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 make findings of fact as to whether counsel was aware of Applicant s mental health issues, and if so, whether there was any indication that Applicant was not competent to enter a plea. The trial court shall make findings as to whether counsel investigated the possibility of an insanity defense, and whether he considered having Applicant evaluated for competency and sanity. The trial court shall make findings as to whether Applicant was advised of his options, and as to whether his decision to plead guilty in exchange for a ninety-nine year sentence was made on the advice of counsel. 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: December 8, 2010

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